j    ! 


READINGS   ON 

AMERICAN   FEDERAL 

GOVERNMENT 


EDITED  BY 

PAUL  S.  REINSCH 
it 

PROFESSOR   OF   POLITICAL   SCIENCE   IN   THE   UNIVERSITY   OF   WISCONSIN 
AUTHOR   OF   "WORLD   POLITICS,"   "COLONIAL   GOVERN- 
MENT,"  "AMERICAN   LEGISLATURES,"   ETC. 


GINN  AND  COMPANY 

BOSTON    •   NEW  YORK   •  CHICAGO    •  LONDON 


COPYRIGHT,  1909 
BY  PAUL  S.  REINSCH 


ALL    RIGHTS    RESERVED 
89.4 


(Efte   satftcnaeum 

GINN  AND  COMPANY  •  PRO- 
PRIETORS  •  BOSTON  •  U.S.A. 


INTRODUCTION 

THE  present  collection  of  materials  for  the  study  of  American  gov- 
ernment was  suggested  to  the  Editor  by  his  own  experience  in  studying 
the  processes  of  American  government  with  a  large  university  class.  It 
was  apparent  that  students  could  derive  great  benefit  from  reading  ex- 
tensively in  documentary  sources,  but  the  difficulty  of  obtaining  access 
to  the  latter  even  in  a  well  stocked  library  proved  so  great  that  only  a 
very  limited  use  could  be  made  of  this  method.  So  it  occurred  to  the 
Editor  that  if  a  number  of  characteristic  selections  were  to  be  made  from 
articles  and  statements  written  by  representative  men,  a  body  of  in- 
formation could  be  brought  together  which  would  be  exceedingly  help- 
ful not  only  to  the  student  in  course,  but  to  the  general  reader  who  might 
desire  to  inform  himself  somewhat  in  detail  about  the  manner  in  which 
public  affairs  are  actually  managed. 

The  materials  contained  in  this  book  are  selected  almost  without  ex- 
ception from  the  spoken  or  written  work  of  men  actually  engaged  in  the 
business  of  government,  — •  presidents,  legislators,  administrative  offi- 
cials, and  judges.  On  account  of  their  special  value,  there  are  included 
a  few  articles  by  writers  who  do  not  have  this  particular  qualification. 
With  this  exception,  the  material  is  taken  from  the  Congressional  Record, 
from  official  reports,  messages,  and  public  addresses.  It  is  fashionable 
to  sneer  at  the  Congressional  Record  as  a  congeries  of  undigested  and 
uninteresting  material  pouring  itself  out  in  liberal  volume  for  the  benefit 
of  an  occasional  country  editor.  But  while  there  may  be  few  constant 
and  faithful  readers  of  this  formidable  document,  it  nevertheless  consti- 
tutes a  valuable  record  of  able  thought  upon  the  public  problems  of  the 
day.  The  debates  of  Congress,  it  is  true,  suffer  from  various  drawbacks. 
In  the  Senate  the  legal  and  juristic  side  of  public  action  is  given  perhaps 
too  great  a  predominance.  The  question  most  frequently  asked  is  "  what 
can  we  do  under  the  constitution,"  rather  than  "  what  is  the  wisest  policy 
for  a  great  nation  to  pursue."  It  is,  of  course,  not  to  be  expected  that 
Senators  should  be  experienced  in  all  the  detailed  pursuits  and  interests 
that  at  present  call  for  federal  legislation.  They  are,  however,  nearly 
all  capable  of  dealing  with  the  legal  aspects  of  the  matter.  This  consti- 
tutes the  common  meeting  ground  of  discussion,  and  so  it  is  not  surpris- 
ing that  questions  of  policy  are  in  the  Senate  usually  treated  in  the  terms 
of  legal  thought  and  of  constitutional  limitation.  But  with  this  qualifica- 


71893 


iv  INTRODUCTION 

tion  in  mind,  the  reader  may  judge  for  himself  of  the  value  of  Senatorial 
discussions  and  of  the  grade  of  ability  displayed  by  the  participants. 

The  House  of  Representatives  is  in  an  unfavorable  position  as  a 
forum  of  argument.  In  the  Senate  there  is  constant  debating,  a  con- 
stant meeting  of  minds,  a  persistent  hammering  out  of  policies  and 
legal  theories.  In  the  House  real  debates  are  rare.  When  great  meas- 
ures are  up  for  discussion,  the  time  allotted  is  usually  so  short  that  the 
individual  speakers  can  do  no  more  than  merely  indicate  their  line  of 
thought;  moreover,  the  bulk  of  time  is  usually  taken  up  by  fencing  for 
parliamentary  position  under  the  rules,  rather  than  by  a  discussion  of 
the  merits  of  the  legislation.  Very  thoughtful  and  valuable  speeches  are 
indeed  written  by  members  of  the  House,  who  often  welcome  any  op- 
portunity to  get  them  into  the  Record.  Thus  a  member  may  take  ad- 
vantage of  five  minutes  falling  to  him  in  the  discussion  of  the  Diplomatic 
and  Consular  Appropriation  Bill,  to  deliver  himself  of  a  speech  upon  the 
iniquities  of  the  tariff  or  upon  the  desirability  of  further  restrictions  to 
emigration.  During  the  last  session  of  Congress  the  distribution  of  the 
President's  message  was  made  a  question  of  debate  almost  until  the 
end  of  the  session.  Whatever  the  member  lacks  time  to  say  in  the  three 
or  five  minutes  allotted  to  him  he  may,  nevertheless,  print  in  the  Record, 
or  he  may  even  obtain  leave  to  print  a  speech  no  part  of  which  has  ever 
been  delivered  on  the  floor  of  the  House.  That  such  arrangements 
defeat  the  spontaneity  of  discussion  will  be  evident.  Yet  there  are  many 
able  and  experienced  men  in  the  House,  who  occasionally  do  get  an 
opportunity  for  an  actual  discussion  of  public  policies;  and  even  the 
speeches  which  are  written  for  partial  delivery  are  frequently  worth 
reading.  The  discussions  which  take  place  under  the  five-minute  rule 
in  Committee  of  the  Whole,  when  appropriation  bills  are  under  con- 
sideration, are  unfortunately  often  characterized  by  a  somewhat  petty 
sedulity  in  matters  of  detail.  It  is  somewhat  discouraging  to  have  great 
measures,  upon  which  the  national  welfare  depends,  disposed  of  in  a  two 
hours'  debate,  while  nearly  the  same  time  may  be  given  to  the  question 
as  to  whether  the  salary  of  a  clerk  in  some  department  shall  be  $1,100 
or  $1,300.  However,  notwithstanding  all  these  disadvantages  and  draw- 
backs, the  debates  in  the  House  are  often  very  valuable  and  informing. 

In  this  collection  special  attention  has  been  given  to  the  procedure 
in  the  House  of  Representatives  and  in  the  Senate.  Congressional  pro- 
cedure is,  indeed,  highly  technical,  but  it  is  most  desirable  that  the 
nation  should  thoroughly  inform  itself  upon  this  matter.  The  proce- 
dure in  the  National  Legislature  ought  to  be  such  as  would  facilitate 
the  discussion  of  really  important  national  problems  and  would  en- 
courage and  bring  forward  those  men  who  are  truly  representative  of 
the  people  and  of  their  common  interests.  It  is  very  questionable  whether 
the  methods  of  procedure  now  prevailing  sufficiently  subserve  these 
purposes. 


INTRODUCTION  v 

The  collection  before  the  reader  has  been  confined  to  material  illus- 
trating the  actual  working  of  the  American  government  in  our  day.  It 
may,  indeed,  be  said  that  for  a  thorough  study  of  American  government 
a  knowledge  of  the  historical  development  of  political  institutions  is  in- 
dispensable. Yet  it  is  equally  essential  that  there  should  be  a  clear  con- 
ception of  what  is  actually  being  done  at  the  present  time.  On  account 
of  the  limitations  of  space  and  in  order  to  preserve  the  unity  of  the  col- 
lection, purely  historical  accounts  have  not  been  admitted.  For  similar 
reasons  there  have  been  excluded  purely  legal  arguments  and  contro- 
versial discussions  of  suggested  reforms.  But  some  discussions  of  a  legal 
nature  have  been  admitted  because  they  served  directly  to  illustrate  the 
actual  workings  of  the  government.  To  reveal  actualities  rather  than 
historical  developments  or  future  tendencies  is  the  purpose  of  this  col- 
lection. From  this  point  of  view,  much  critical  matter  has  been  included, 
for  the  reason  that  opposition  serves  to  make  us  conscious  of  many  facts 
which  otherwise  we  might  have  overlooked.  Thus  the  details  of  the 
centralized  organization  in  the  House  of  Representatives  would  not 
have  become  matters  of  public  knowledge  but  for  the  opposition  which 
this  system  has  evoked.  Of  course,  in  the  use  of  such  material  the 
reader  will  exercise  caution,  making  allowance  for  the  heat  of  party  con- 
troversy, and  forming  his  own  conclusions  as  to  how  far  the  views  of 
the  individual  writer  or  speaker  may  have  been  colored  by  a  specific 
political  purpose. 

Though  the  Editor  has  aimed  to  steer  clear  of  purely  partisan  dis- 
cussions, it  appeared  impossible  to  exclude  everything  tinged  with  a 
party  bias  without  reducing  the  collection  to  a  neutral  and  inane  level. 
It  is  exactly  the  personal  equation  in  discussion  and  argument  that  lends 
value  when  backed  by  character  and  experience.  In  order  to  feel  at 
home  in  the  actual  world  of  political  thought  and  action,  the  student 
should  be  familiar  with  the  controversial  methods  that  he  will  encounter 
at  every  turn,  —  he  should  be  trained  in  distinguishing  political  fact 
from  political  opinion.  However,  in  most  of  the  important  matters  dealt 
with  in  this  collection  the  principle  of  party  allegiance  may  be  regarded 
as  non-essential.  The  details  of  House  procedure  have  been  attacked 
by  men  of  all  political  faiths.  Men  of  all  parties  have  been  united  upon 
the  necessity  of  public  control  of  corporations.  As  a  matter  of  fact,  of 
recent  years,  controversies  in  our  legislative  bodies  have  rarely  taken 
on  the  form  of  pure  party  action. 

The  Case  Method  which  has  been  used  with  great  success  in  the  study 
of  private  and  public  law  may  be  applied  to  the  study  of  institutions  in 
general.  The  student  should  read  a  certain  group  of  selections  and  then 
reason  out  for  himself  the  implications  therein  contained,  analyze  the 
discussions  and  debates,  separate  the  essential  from  the  non-essential, 
and  avoid  false  analogies,  making  allowance  for  personal  and  political 
bias.  Thus  he  will  arrive  at  his  own  conclusions,  relying  upon  his  own 


vi  INTRODUCTION 

judgment,  as  he  must  whenever  confronted  by  the  facts  of  the  actual 
world.  This  method  has  some  great  advantages  over  that  of  getting 
ready-made  conclusions  from  text-books,  although  it  does  not  in  the 
study  of  political  science  supersede  the  latter.  The  process  while  irk- 
some at  the  beginning  will  soon  have  the  same  exhilarating  effect  upon 
the  mind  that  brisk  physical  exercise  has  on  the  body.  The  Editor,  in 
the  notes  accompanying  the  selections,  has  avoided  making  summaries 
or  drawing  conclusions.  He  has  merely  given  the  general  setting  of  the 
selection,  and  indicated  its  relation  to  other  matters.  In  cases  where 
parts  of  articles  are  printed,  the  material  omitted  is  usually  historic  or 
of  an  incidental  nature,  while  the  part  reproduced  deals  directly  with 
present  day  methods  of  government. 

The  Editor  desires  to  make  special  acknowledgments  to  various  pub- 
lishers and  authors  who  have  permitted  him  to  make  selections  from 
articles  or  works,  published  or  written  by  them.  He  desires  in  the  first 
place  to  mention  the  "  Autobiography  of  Senator  Hoar,"  published  by 
Scribner's  Sons  and  Company,  an  admirable  treasure-house  of  political 
reminiscence,  to  be  compared  among  recent  books  only  to  the  Memoirs 
of  Carl  Schurz.  The  same  publishers  have  permitted  the  use  of  por- 
tions of  articles  published  in  Scribner's  Magazine,  by  Mr.  Frank  A.  Van- 
derlip  on  the  Treasury,  General  W.  H.  Carter  on  the  War  Department, 
Mr.  S.  P.  Langley  on  the  Scientific  Work  of  the  Government,  and  Gov- 
ernor Magoon  on  the  War  Department.  Secretary  Root  permitted  the 
use  of  his  address  on  Local  Self-Government  of  the  States;  and  Judge 
Charles  F.  Amidon,  that  on  the  Nation  and  the  Constitution.  Acknowl- 
edgments are  further  due  the  following  publications  and  writers :  The 
Atlantic  Monthly,  for  articles  by  Mr.  S.  W.  McCall,  on  the  Power  of  the 
Senate  and  on  the  Fifty-Ninth  Congress;  Judge  F.  C.  Lowell,  on 
American  Diplomacy;  as  well  as  Mr.  A.  P.  Dennis,  on  Our  Changing 
Constitution.  The  North  American  Review  permitted  the  use  of  articles 
by  Mr.  A.  Maurice  Lowe,  on  the  Oligarchy  of  the  Senate,  and  Mr. 
Albert  D.  Currier,  on  Government  by  Executive  Rulings.  The  Political 
Science  Quarterly  is  entitled  to  acknowledgment  for  those  by  Mr. 
Harold  M.  Bowman,  on  American  Administrative  Tribunals,  and  Mr. 
A.  P.  Dennis,  on  the  Democratic  Convention  of  1904;  the  Independent 
for  that  by  Mr.  Albert  Halstead  on  The  President  at  Work ;  the  Outlook 
for  the  article  by  Mr.  Huntingdon  Wilson,  on  the  Foreign  Service  of  the 
United  States.  The  Review  of  Reviews  permitted  the  use  of  the  article 
by  Mr.  W.  B.  Shaw,  on  The  Civil  Service  under  Roosevelt,  and  of  Mr. 
Bowker,  on  the  Post  Office;  McClure's  Magazine  of  that  by  President 
Cleveland,  on  The  Government  in  the  Chicago  Strike  of  1894;  The 
Forum,  that  by  Mr.  H.  L.  West,  on  the  Senate;  and  the  Michigan  Law 
Review,  that  on  The  Department  of  Justice  by  Professor  J.  A.  Fairlie. 
The  Editor  is  further  greatly  obliged  to  the  publishers  of  the  New  York 
Evening  Post  for  the  permission  to  reproduce  a  number  of  valuable 


INTRODUCTION  vii 

articles  and  editorials  from  that  journal.  Two  articles  have  been  taken 
from  foreign  Reviews,  that  by  Professor  S.  J.  McLean,  on  President 
Roosevelt  and  the  Trusts  and  by  Mr.  Frederic  Harrison,  on  the  In- 
auguration of  President  McKinley.  The  Presidents,  Senators,  Repre- 
sentatives, Judges  and  Government  Officials  whose  careful  and  authori- 
tative statements  in  Congressional  debates  and  public  documents  form 
the  great  bulk  of  this  collection  are  also  entitled  to  the  personal  thanks 
of  students  of  American  Government  for  their  lucid  contributions 
towards  its  description. 

The  Editor  also  desires  to  express  his  obligation  to  Mr.  William  L. 
Bailey  and  to  Professor  R.  B.  Scott,  for  looking  over  the  proofs. 


CONTENTS 

I.   THE  PRESIDENT.  Page 
Frederic  Harrison,  The  Inauguration  of  President  McKinley, 

1900 i 

Albert  Halstead,  The  President  at  Work 5 

II.    POWERS  OF  THE  EXECUTIVE. 

From  a  Speech  of  Senator  Rayner 10 

From  a  Speech  of  Representative  Towne 15 

Debate  on  the  War  Power 22 

Grover  Cleveland,  The  Government  in  the  Chicago  Strike  of 

1894 32 

III.  THE  EXECUTIVE  AND  CONGRESS. 

James  A.  Garfield,  on  the  Executive  and  Congress    ....  47 

Senator  Dolliver,  on  the  President 50 

Representative  Adams,  on  the  Executive 58 

Senator  Rayner  on  Congress  and  the  Executive 60 

Representative  John  Sharp  Williams'  Remarks 63 

President  Cleveland  on  the  Transmission  of  Official  Papers  65 

Discussion  of  Requests  for  Information 67 

IV.  THE  TREATY-MAKING  POWER. 

Senator  Rayner  on  the  Treaty-Making  Power  ......  79 

Speech  of  Senator  John  C.  Spooner  on  Treaties 81 

Speech  of  Senator  Bacon 92 

Senator  Hoar  on  Diplomatic  Appointments 124 

V.    THE  SENATE. 

Henry  Litchfield  West,  The  Place  of  the  Senate  in  Our 

Government 127 

S.  W.  McCall,  The  Power  of  the  Senate 135 

A.  Maurice  Low,  The  Oligarchy  of  the  Senate       146 

Senate  Procedure.    Obstruction  on  the  Currency  Bill,  1908  .  155 

The  Committee  Work*  of  Senators 173 

Senate  Secret  Sessions 179 

Senatorial  Maiden  Speeches 183 

Discussion  on  Printing  Speeches  in  the  Record 185 

VI.    SENATE  AND  HOUSE  CONFERENCE  COMMITTEES. 

Report  on  the  Railway  Rate  Bill 189 

The  Army  Appropriation  Bill,  1902 202 

Mr.  Cannon's  Remonstrance,  1903 204 

The  Currency  Bill  of  1908 205 

From  the  Senate  Debate  on  the  Currency  Bill 220 


x  CONTENTS 

Page 

VII.  THE  ORGANIZATION  AND  RULES  OF  THE  HOUSE  OF  REPRESENTA- 

TIVES. 

The  Procedure  of  Organizing  the  House 223 

Defense  of  the  Rules 236 

Criticism  of  the  Rules,  April  5,  1906 244 

Representative  Cushman  on  the  Rules      250 

Representative  Cockran  on  the  House  Procedure 252 

The  Committee  System 257 

Tactics    of    the    Opposition.      Account    of   the    Opposition 

Movement 265 

Representative  J.  S.  Williams  Announces  his  Policy  ....  271 

Report  of  a  Special  Rule,  April  4,  1908 273 

Discussion  on  the  Bridge  Bill,  May  13,  1908      276 

Remarks  of  Representative  Clark 285 

Congress  Again  Debating,  1902      288 

Influence  in  Congress,  1906 290 

Slipshod  Legislation,  1903 293 

General  Leave  to  Print 296 

VIII.  FINANCIAL  LEGISLATION. 

James  A.  Garfield  on  Revenue  Bills 299 

Annual  Statement  of  Appropriations 301 

Review  of  Appropriations  on  Behalf  of  the  Minority     .    .    .  309 

Divided  Authority  and  Appropriations 317 

Debate  on  an  Appropriation  Bill % 320 

Special  Rule  on  the  Legislative,  Executive,  and  Judicial  Ap- 
propriation Bill 333 

Mr.  Tawney  on  Urgent  Deficiencies 348 

Representative  Littauer  on  Appropriations 351 

Representative    Gillett,    on    the    Influences    in    Legislation 

towards  Extravagance      355 

Capitalizing  Extravagance,  1901 357 

President  Cleveland's  Veto  Message  on  the  River  and  Harbor 

Bill,  1896 359 

IX.    THE  DEPARTMENTS. 

Frank  A.  Vanderlip,  The  Treasury 362 

The  Treasury  and  the  Money  Market 373 

Professor  John  A.  Fairlie,  The  United  States  Department  of 

Justice 377 

R.  R.  Bowker,  The  Post  Office:  Its  Facts  and  its  Possibilities  381 

Post  Office  Department:  Mail  Fraud  Orders 390 

Speech  of  Hon.  Edgar  D.  Crumpacker  on  the  Post-Office 

Appropriation  Bill 394 

The  Department  of  Agriculture 401 

Speech   of  Hon.  Franklin   E.  Brooks   on   the  Agricultural 

Appropriation  Bill 406 

S.  P.  Langley,  The  Scientific  Work  of  the  Government     .    .  419 

Representative  James  A.  Tawney,  Special  Agents 432 

The  Work  of  the  Keep  Commission      439 


CONTENTS  xi 

Page 

Administrative  Tribunals  and  Regulations 445 

Albert  Dean  Currier,  Government  by  Executive  Rulings    .  452 

Government  Printing 459 

Speaker  Cannon's  Maiden  Speech  on  Public  Documents  .    .  461 

Instructions  to  the  Philippine  Commission 463 

Administration  of  Cuba,   Porto  Rico,   and  the  Philippine 

Islands 469 

X.    LEGISLATIVE  AND  ADMINISTRATIVE  PROBLEMS. 

Samuel  W.  McCall,  The  Fifty-Ninth  Congress 473 

Federal  Control  of  Corporations 485 

S.  J.  McLean,  President  Roosevelt  and  the  Trusts    ....  495 

Representative  Cockran  on  Corporate  Power 507 

The  Railway  Rate  Act  of  1906 512 

Extracts  from  the  Report  of  the  Interstate  Commerce  .Com- 
mission, December  23,  1907 517 

The  Employers'  Liability  Bill 527 

The  Bureau  of  Corporations 529 

Preservation  and  Development  of  Natural  Resources  ...  538 
Address  of  President  Roosevelt  on  Natural  Resources,  before 

the  Meeting  of  Governors,  1908 540 

From  the  Message  of  President  Roosevelt,  1907 548 

Senate  Debate  on  Forest  Reservations 554 

Speech  of  Senator  Albert  J.  Beveridge  on  the  Forest  Service  567 

The  National  Forest  Policy 586 

Speech  of  Senator  Francis  G.  Newlands  on  Inland  Water- 
ways       590 

XI.    ARMY  AND  NAVY. 

From  President  Roosevelt's  Message,  December  3,  1907  .  .  610 
Brigadier-General  William  H.  Carter,  The  War  Department 

—  Military  Administration 618 

Speech  of  Hon.  Albert  F.  Dawson  on  Naval  Administration  628 

T.  G.  Roberts,  Naval  Administration 634 

XII.  THE  AMERICAN  FOREIGN  SERVICE. 

Huntington  Wilson,  The  American  Foreign  Service  ....  651 
From  a  Senate  Hearing  on  the  Reorganization  of  Consular 

Service,  1906  658 

Regulations  governing  Appointments  and  Promotions  in  the 

Consular  Service  of  the  United  States 671 

Regulations  governing  Examinations 674 

Francis  C.  Lowell,  American  Diplomacy  675 

XIII.  CIVIL  SERVICE. 

From  the  First  Annual  Message  of  President  Harrison,  1889  683 
From  the  Fourth  Annual  Message  of  President  Cleveland, 

1896 685 

William  B.  Shaw,  The  Civil  Service  under  Roosevelt    .    .    .  686 

Extension  of  Civil-Service  Rules 698 

Senator  Hoar  on  Appointments  to  Office 701 


xii  CONTENTS 

Page 

XIV.    THE  COURTS. 

From  an  Address  of  Mr.  Justice  Field  delivered  upon  the 

Occasion  of  the  Hundredth  Anniversary  of  the  Court  .  .  703 
David  J.  Brewer,  The  Supreme  Court  of  the  United  States  .  .  706 
Remarks  of  Mr.  Justice  Harlan  on  the  Methods  of  the 

Supreme  Court 716 

The  Supreme  Court  on  Judicial  Power 718 

The  Right  of  the  Government  to  Appeal  in  Criminal   Cases 

—  Injunctions 721 

XV.    CENTRALIZATION  AND  CHANGES  IN  THE  CONSTITUTION. 

Elihu  Root,  How  to  Preserve  the  Local  Self-Government  of 

the  States 731 

From  President  Roosevelt's  Speech  at  St.  Louis,  1907  .  .  .  736 
Judge  Charles  F.  Amidon,  The  Nation  and  the  Constitution  739 
Alfred  Pearce  Dennis,  Our  Changing  Constitution  ....  752 
Speech  of  Representative  De  Armond  for  a  Constitutional 

Convention • 763 

New  Fields  for  Federal  Power 774 

Representative  James  A.  Tawney,  From  a  Memorial  Ad- 
dress on  the  Battlefield  of  Gettysburg 776 

From  an  Address   by  Representative   J.   S.   Williams,   on 

Federal  Usurpation 781 

Speeches  of  Representatives  Sherley,  Cockran,  and  others  on 
Federal  Powers 801 

XVI.    THE  NATIONAL  CONVENTION. 

Senator  Hoar,  The  Republican  Convention  of  1880  ....  826 
Alfred  Pearce  Dennis,  The  Democratic  Convention  of  1904  833 

INDEX  846 


READINGS   ON 

AMERICAN    FEDERAL 
GOVERNMENT 


I 

THE    PRESIDENT 

[The  inauguration  of  the  President  has  perhaps  never  been  described  in  a 
more  attractive  manner  than  by  Mr.  Frederic  Harrison.  The  date  of  the  in- 
auguration is  so  early  that  the  inclemency  of  the  weather  at  that  time  often 
makes  the  occasion  a  trying  one  to  the  health  of  the  participants.  It  has  there- 
fore been  suggested  that  the  date  should  be  changed  so  as  to  fall  on  the  memo- 
rial day  of  Washington's  first  inauguration,  April  3<Dth.  —  The  essay  by  Mr. 
Halstead,  now  Consul  at  Birmingham,  gives  an  account  of  the  methods  of 
despatching  business  in  the  Executive  Office.] 

THE    INAUGURATION    OF    PRESIDENT    McKINLEY,  1900 
BY  FREDERIC  HARRISON  l 

THE  Ceremony  of  the  Inauguration  of  the  President  and  Vice-Presi- 
dent at  Washington  on  the  4th  of  March  is,  indeed,  a  characteristic  and 
suggestive  function.  I  had  the  good  fortune  to  witness  it  this  year  under 
the  most  favorable  conditions,  and  was  deeply  impressed  with  all  it 
represented.  It  summoned  up  the  vast  extent  and  power  of  the  United 
States,  its  absolute  democracy,  the  simplicity,  ease,  and  homeliness  of 
its  government,  its  contempt  of  forms,  its  entire  confidence  in  itself  and 
perfect  satisfaction  with  its  own  ways.  In  the  grand  Capitol  of  the  noble 
city  of  Washington,  than  which  no  finer  edifice  or  city  exists  in  the  Old 
World,  were  gathered  the  men  chosen  by  the  adult  citizens  of  a  nation 
of  some  seventy  millions,  scattered  over  a  vast  continent.  The  Presi- 
dent, Vice-President,  senators,  and  representatives  elected  on  this  enor- 
mous ballot,  entrusted  with  this  stupendous  power  and  wealth,  sate 
indistinguishable  from  the  ordinary  citizens  around  them  —  clerks, 

1  From  "  Impressions  of  America  "  in  The  Nineteenth  Century,  49 :  922. 
i  i 


3  AMERICAN   FEDERAL   GOVERNMENT 

secretaries,  journalists,  and  casual  friends,  who  were  crowded  pell-mell 
on  the  floor  of  the  Senate  House  itself. 

To  this  miscellaneous  body,  which  might  be  any  average  county 
council  or  borough  board,  there  entered  a  long  file  of  ambassadors  and 
ministers  in  all  the  finery  of  European  and  Oriental  courts;  uniforms 
blazing  with  gold  lace,  plumes,  velvet  or  fur,  swords,  sabres,  and  hel- 
mets; the  Austro-Hungarian  magnate,  the  stately  ambassadors  of  Great 
Britain,  Germany,  France,  and  Russia,  in  their  court  uniforms;  Minis- 
ter of  China,  in  his  buttoned  headdress  uniform;  the  envoys  of  the  smaller 
Powers  of  Europe,  and  then  the  diplomatists  of  the  South  American 
and  Central  American  and  West  Indian  States;  black  men,  brown  men, 
whitey-brown  men,  in  various  gaudy  uniforms;  the  Minister  of  the 
Sultan  in  his  fez,  those  of  Siam  and  Korea  in  their  national  dress  — 
more  than  thirty  in  all,  in  every  color,  adornment,  and  style,  repre- 
senting men  of  every  race  from  every  part  of  the  planet. 

This  brilliant  and  motley  group  may  be  seen  at  St.  Stephen's,  or  at 
the  functions  of  Berlin  and  St.  Petersburg,  where  it  is  only  a  natural 
part  of  similar  bravery  and  feudal  splendor.  But  here,  in  a  hall  crowded 
with  sober  citizens  in  broadcloth,  without  a  star,  a  ribbon,  or  a  sword 
between  them,  the  effect  was  almost  comic.  Siam,  Korea,  Hungary, 
and  Portugal  as  gay  as  butterflies.  McKinley  and  Roosevelt  matter- 
of-fact  civilians,  as  if  they  were  Chairman  and  Vice-Chairman  of  the 
London  County  Council !  And  around  them  were  the  chosen  delegates 
of  the  great  Republic,  jostled  in  their  own  hall  by  pressmen,  secretaries, 
and  curious  strangers  like  myself.  The  shirt-sleeve  theory  of  govern- 
ment could  hardly  go  farther,  and,  perhaps,  need  not  go  quite  so  far. 
My  own  republican  soul  was  stirred  when  I  set  myself  to  think  which 
of  the  two  forms  would  prevail  in  the  centuries  to  come.  I  thought  first 
of  the  Roman  Senate  (according  to  the  old  myth),  sitting  immovable 
as  statues  in  their  white  togas,  when  the  Gauls  of  Brennus,  in  their 
torques  and  war-paint,  dashed  into  the  Senate  House;  and  then  I  be- 
gan to  think,  Were  these  quiet  citizens  seated  there  to  see  a  comic 
opera  at  the  Savoy  Theatre? 

Not  that  the  representatives  of  the  Republic  are  wanting  in  personal 
bearing.  The  President  sate  through  the  ceremonies  with  placid  dignity, 
his  fine  features,  in  their  stern  repose,  looking  like  a  bronze  figure  of 
the  Elder  Brutus  or  Cato  the  Censor.  But  at  a  personal  reception  in 
the  White  House  Mr.  McKinley  will  show  as  much  grace  and  courtesy 
of  demeanour  as  any  Sovereign  by  divine  right,  and  his  smile  and  his 
voice  are  pronounced  (not  only  by  women)  to  be  perfectly  winning. 
The  diplomatists  of  Europe  agree  in  assuring  us  that  nothing  can  ex- 
ceed the  tact  and  "correctness"  which  distinguish  Mr.  Hay,  the  ac- 
complished Secretary  of  State.  It  is  true  that  Congressmen  (in  their 
shirt  sleeves)  have  not  that  repose  of  manner  which  marks  the  caste  of 
Vere  de  Vere.  But  the  men  who  are  charged  to  speak  in  the  name  of 


THE  PRESIDENT  3 

the  State  will  usually  be  found  to  rise  to  the  occasion  with  that  facility 
which  enables  every  genuine  American  to  adapt  himself  to  play  a  new 
part,  and  to  fulfil  an  unaccustomed  duty. 

It  is  no  easy  task  to  combine  the  conduct  of  vast  interests,  the  repre- 
sentation of  enormous  power,  with  the  ultra-democratic  traditions  of 
the  absolute  equality  of  all  citizens.  No  sooner  had  the  President  sum- 
moned before  him  the  splendiferous  envoys  of  the  whole  world,  than  he 
passed  out  to  the  historic  steps  of  the  Capitol,  to  pronounce  his  In- 
augural Address.  As  I  stood  near  him,  and  listened  to  the  clear  and 
keenly-balanced  sentences,  which  the  cables  and  telegraphs  of  the  civil- 
ized world  were  carrying  to  expectant  nations,  I  noticed  how  the  crowd, 
a  few  feet  only  below  him,  was  a  miscellaneous  gathering  from  the  streets 
like  a  knot  in  the  Park  listening  to  a  Salvation  preacher  or  a  Socialist 
orator  on  a  Sunday,  negroes  and  lads  not  the  least  vociferous  in 
their  applause,  whilst  on  a  platform  fifty  yards  off  there  were 
mounted  a  dozen  batteries  of  photographers,  from  kodaks  to  life-size 
lenses.  The  American  public  man  —  even  the  private  man  and  private 
woman  —  has  always  to  reckon  with  the  man  in  the  street,  journalists, 
and  kodaks. 

It  is  needless  to  point  the  moral  of  the  difference  between  the  In- 
augural Address  of  a  President,  delivered  in  the  open  air  to  a  miscella- 
neous crowd,  and  the  speech  of  an  European  Sovereign  opening  Par- 
liament. The  one  is  an  elaborate  State  paper,  spoken  by  a  citizen  in 
frock  coat  to  a  mob  of  his  fellow-citizens  in  the  street;  the  other  is 
usually  conventional  platitudes,  pronounced  in  a  gorgeous  palace  with 
a  scene  of  medieval  pageantry.  It  is  the  contrast  between  the  monar- 
chical survival  and  Republican  realism.  Kodaks,  mobs,  and  vocif- 
erous negroes  are  not  a  necessary  part  of  the  government  of  a  State. 
But  the  Presidential  address  from  the  steps  of  the  Capitol  is  certainly 
more  like  that  of  Pericles  on  the  Pnyx,  or  of  Scipio  and  Marius  on  the 
Rostra,  than  our  House  of  Lords;  and  it  is  conceivable  that  it  may 
prove  more  agreeable  to  the  practice  of  future  republics  in  the  ages  to 
come.  The  President  of  the  United  States  expounds  his  policy  in  a 
reasoned  argument  to  all  citizens  who  choose  to  hear  him.  The  Euro- 
pean monarch  performs  a  traditional  ceremonial  to  a  crowd  of  state  cour- 
tiers who  possess  office  without  power  and  honor  without  responsibility. 

The  White  House,  as  the  executive  mansion  is  called,  is  interesting 
for  its  historic  associations,  which  exactly  cover  the  nineteenth  century, 
with  its  portraits  and  reminiscences  of  Presidents  and  statesmen,  and 
its  characteristic  simplicity  and  modest  appointments.  It  is  not  a  con- 
venient residence  for  a  President  with  such  great  responsibilities.  But, 
as  the  term  of  residence  is  usually  so  short,  and  the  associations  of  the 
house  are  so  rich,  it  would  be  a  pity  to  change  it  for  a  pretentious  modern 
palace.  In  the  meantime  the  quiet  old  mansion,  merely  a  fine  Georgian 
country  house  in  a  pleasant  park,  serves  to  remind  the  American  citizen 


4  AMERICAN   FEDERAL   GOVERNMENT 

of  the  democratic  origin  of  his  Chief  Magistrate,  who  is  certainly  not 
yet  an  emperor.  The  White  House  was  a  residence  suitable  for  men 
like  Jefferson,  Lincoln,  and  Grant;  and  it  seems  a  not  unfitting  office 
for  their  successors. 

The  Capitol  at  Washington  struck  me  as  being  the  most  effective 
mass  of  public  buildings  in  the  world,  especially  when  viewed  at  some 
distance,  and  from  the  park  in  which  it  stands.  I  am  well  aware  of  cer- 
tain constructive  defects  which  have  been  insisted  on  by  Ferguson  and 
other  critics;  and  no  one  pretends  that  it  is  a  perfect  design  of  the 
highest  order  either  in  originality  or  style.  But  as  an  effective  public 
edifice  of  a  grandiose  kind,  I  doubt  if  any  capital  city  can  show  its  equal. 
This  is  largely  due  to  the  admirable  proportions  of  its  central  dome 
group,  which  I  hold  to  be,  from  the  pictorial  point  of  view,  more  success- 
ful than  those  of  St.  Peter's,  the  Cathedral  of  Florence,  Agia  and  Sophia, 
St.  Isaac's,  the  Pantheon,  St.  Paul's,  or  the  new  Cathedral  of  Berlin. 
But  the  unique  effect  is  still  more  due  to  the  magnificent  site  which  the 
Capitol  at  Washington  enjoys.  I  have  no  hesitation  in  saying  that  the 
site  of  the  Capitol  is  the  noblest  in  the  world,  if  we  exclude  that  of  the 
Parthenon  in  its  pristine  glory.  Neither  Rome  nor  Constantinople,  nor 
Florence,  nor  Paris,  nor  Berlin,  nor  London  possesses  any  central  emi- 
nence with  broad  open  spaces  on  all  sides,  crowned  by  a  vast  pile  cover- 
ing nearly  four  acres  and  rising  to  a  height  of  nearly  three  hundred  feet, 
which  seems  to  dominate  the  whole  city.  Washington  is  the  only  capital 
city  which  has  this  colossal  center  or  crown.  And  Londoners  can  im- 
agine the  effect  if  their  St.  Paul's  stood  in  an  open  park  reaching  from 
the  Temple  to  Finsbury  Circus,  and  the  great  creation  of  Wren  were 
dazzling  white  marble,  and  soared  into  an  atmosphere  of  sunny  light. 

Washington,  the  youngest  capital  city  of  the  world,  bids 'fair  to  be- 
come, before  the  twentieth  century  is  ended,  the  most  beautiful  and 
certainly  the  most  commodious.  It  is  the  only  capital  which  has  been 
laid  out  from  the  first  entirely  on  modern  lines,  with  organic  unity  of 
plan,  unencumbered  with  any  antique  limitations  and  confusions.  The 
spacious  avenues,  intersected  by  very  broad  streets,  all  lined  with  maple 
and  elm,  and  radiating  from  a  multitude  of  "circles,"  its  numerous 
parks  and  squares,  with  fountains,  monuments,  and  equestrian  statues 
at  each  available  junction,  its  semitropical  climate,  for  it  is  in  the  lati- 
tude of  Lisbon  and  Palermo,  its  freedom  from  the  disfigurements  of 
smoke,  trade,  and  manufactures,  its  singular  form  of  government  under 
a  State  autocracy  without  any  municipal  representation,  give  it  unique 
opportunities  to  develop.  As  yet  it  is  but  half  completed,  owing  to  local 
difficulties  as  to  rights  of  property;  and  it  still  has  the  air  of  an  artificial 
experiment  in  city  architecture.  But  within  two  or  three  generations, 
when  its  vacant  sites  are  filled  up,  and  public  buildings,  monuments, 
and  statues  continue  to  be  raised  with  all  the  wealth,  resources,  and 
energy  of  the  Republic,  if  the  artists  of  the  future  can  be  restrained 


THE  PRESIDENT  5 

within  the  limits  of  good  sense  and  fine  taste,  Washington  may  look 
more  like  the  Rome  of  the  Antonies  than  any  city  of  the  Old  World. 

Of  all  that  I  saw  in  America,  I  look  back  with  the  most  emotion  to 
my  visit  to  Mount  Vernon,  the  home  and  burial  place  of  George  Wash- 
ington. I  saw  it  on  a  lovely  spring  day,  amidst  thousands  of  pilgrims, 
in  the  Inauguration  week.  On  a  finely  wooded  bluff,  rising  above  the 
grand  Potomac  River,  stands  the  plain  but  spacious  wooden  house  of 
the  Founder  of  the  Republic.  It  has  been  preserved  and  partly  restored 
with  perfect  taste,  the  original  furniture,  pictures,  and  ornaments  sup- 
plemented by  fit  contemporary  pieces.  It  enables  one  perfectly  to  con- 
jure up  an  Image  of  the  homely,  large,  and  generous  life  of  the  President 
before  the  war  called  him  to  the  field,  and  after  he  had  retired  from  all 
cares  of  state.  We  fancy  him  sitting  under  the  spacious  eastern  portico 
with  its  eight  tall  columns,  looking  out  over  the  broad  landscape  of  forest 
and  river,  or  lying  in  his  last  sleep  in  the  simple  bed,  with  its  dimity 
coverlet,  and  then  laid  to  rest  in  the  rural  tomb  below  the  house,  which 
he  ordered  himself,  and  in  which  his  descendants  have  insisted  on  keep- 
ing his  remains.  General  Grant  lies  beside  the  Hudson  at  New  York 
in  a  magnificent  mausoleum  palpably  imitated  from  the  tomb  of  Napo- 
leon in  the  Invalides.  How  infinitely  more  fitting  and  more  touching  is 
the  Spartan  simplicity  of  Washington's  burial  place  —  an  austere  cell 
within  his  own  ancestral  ground;  yet  not  a  morning's  drive  from  the 
splendid  capital  which  the  nation  has  named  after  its  heroic  founder  — 
how  much  more  fitting  and  more  touching  is  this  than  is  the  imperial 
mausoleum  to  which  they  have  carried  the  bones  of  the  tyrant  who 
ruined  France !  It  has  been  frequently  attempted  to  remove  the  sar- 
cophagus in  which  Washington  lies  from  Mount  Vernon,  his  home,  to 
place  it  under  the  dome  of  the  Capitol.  But  as  yet  it  has  been  wisely  de- 
cided to  do  nothing  that  can  impair  the  unique  legend  which  has  gath- 
ered round  the  memory  of  the  Western  Cincinnatus. 


THE  PRESIDENT   AT  WORK1 
BY  ALBERT  HALSTEAD 

WHILE  the  Presidency  is,  of  necessity,  a  laborious  office,  its  cares  may 
be  much  lessened  if  the  Secretary  to  the  President  is  capable  and  diplo- 
matic, able  to  relieve  his  chief  of  many  burdens,  a  good  counselor  who 
is  broad  and  big  enough  mentally  to  make  an  efficient  Cabinet  officer. 
President  McKinley  has  such  a  man  in  George  B.  Cortelyou,  who  is  not 
only  his  secretary,  but  his  trusted  friend.  Though  a  staunch  Republican, 
Mr.  Cortelyou  was  not  selected  through  political  influence,  but  because 

1  From  the  Independent,  Sept.,  1901.     Reprinted  in  part,  by  permission. 


6  AMERICAN   FEDERAL   GOVERNMENT 

he  had  proved  himself  efficient  and  trustworthy.  In  this  difficult  position 
he  makes  friends  rather  than  enemies  for  the  President.  He  is  the  most 
popular  secretary  who  has  served  a  President  in  a  quarter  of  a  century. 
When  it  is  remembered  how  many  people  he  must  disappoint  each  day ; 
that  he  must  tell  the  newspaper  correspondents  what  they  should  know 
without  seeming  to  suppress  information ;  that  he  must  remember  every 
public  man  he  has  ever  met ;  that  he  must  be  quick  to  grasp  what  each 
caller  wants  and  be  fully  informed  on  every  subject,  and  that  he  must 
be  the  buffer  between  the  President  and  the  public,  it  becomes  apparent 
that  unusual  talents  are  required  of  him.  Mr.  Cortelyou  has  earned 
the  President's  confidence,  and- he  does  more  executive  work  than  any 
previous  secretary.  He  has  been  so  successful  in  systematizing  the  work 
of  his  office  that  it  is  better  and  more  promptly  done  than  ever  before. 

The  extent  of  President  McKinley's  correspondence  can  be  appre- 
ciated from  the  fact  that  four  hundred  thousand  communications  were 
received  and  disposed  of  at  the  executive  offices  in  his  first  term.  Mr. 
Cortelyou,  with  a  force  composed  almost  exclusively  of  stenographers, 
who  read  each  others'  notes  with  facility,  has  dispensed  with  an  immense 
amount  of  unnecessary  work.  When  a  letter  or  document  is  received 
a  memorandum,  to  show  what  is  to  be  done  with  it,  is  written  in  short- 
hand in  its  upper  left  hand  corner.  This  is  to  be  kept  on  the  paper  until 
it  comes  back  to  the  secretary  for  approval.  A  letter  is  then  written  by 
a  clerk  in  conformity  with  the  memorandum.  Thus  in  most  of  the  cor- 
respondence there  is  no  dictation.  A  "  precedent  index,"  prepared  by 
Secretary  Cortelyou,  covering  practically  every  case  that  is  likely  to 
arise,  serves  as  a  guide  to  the  clerks  in  answering  correspondence  and 
lessens  the  work  materially.  When  a  letter  is  of  sufficient  importance  to 
be  filed  in  the  executive  offices  the  shorthand  notes  are  preserved  with 
it,  so  the  exact  action  taken  can  be  learned  at  a  glance.  Every  important 
paper  is  briefed  in  typewriting,  and  when  necessary  this  brief  is  filed 
with  the  papers,  giving  an  accurate  record.  Appreciating  the  impor- 
tance of  expediting  business,  Mr.  Cortelyou  prepared  and  had  printed 
a  number  of  indorsement  papers,  which  are  attached  to  papers  referred 
to  other  departments.  Consequently  when  a  communication  comes  to 
the  White  House  that  should  go  to  the  Department  of  State,  a  paster 
referring  it  there  is  attached  and,  thus  indorsed,  it  is  forwarded.  A  rule 
of  the  executive  offices  requires  that  the  work  of  each  desk  be  finished 
on  the  day  of  its  receipt.  This  prevents  an  accumulation  of  work  and 
keeps  it  up  to  date. 

When  the  President  makes  a  journey  his  secretary  and  several  mem- 
bers of  the  White  House  clerical  force  accompany  him.  All  speeches 
made  on  the  trip  are  reported  stenographically.  Copies  are  furnished 
the  newspaper  men  with  the  party,  and  a  special  copy  is  preserved  for 
the  office  records.  Telegraphers  from  the  office  force  are  also  with  the 
President,  and  he  is  kept  in  constant  touch  with  Washington.  The 


THE   PRESIDENT  7 

"war  room,"  where  several  telegraphers  are  always  on  duty,  puts  the 
President  in  communication  with  every  part  of  the  world.  Here  cipher 
despatches  are  received  and  he  is  kept  advised  of  every  important  event. 
With  such  a  system,  so  much  work  and  such  a  force  there  is  no  idling 
in  the  executive  offices. 

President  McKinley  is  rather  an  early  riser.  He  breakfasts  at  eight 
and  reads  the  papers  until  shortly  before  ten,  when  he  goes  to  the  Cabinet 
room,  which  he  makes  his  private  office.  There  on  his  desk  he  finds  a 
neat,  typewritten  paper,  headed:  "The  President's  Engagements,"  and 
dated.  Upon  this  is  the  name  of  each  caller  who  has  a  specific  engage- 
ment, and  a  line  stating  the  purpose  of  the  visit.  Mr.  McKinley  receives 
his  caller  at  the  head  of  the  Cabinet  table,  often,  however,  stepping  for- 
ward to  meet  him.  A  cordial  handgrasp  is  given  and  he  waits  for  the 
visitor  to  state  his  business.  He  usually  remains  standing  during  the 
interview,  but  if  he  sits  down  it  is  time  to  retire  when  he  arises.  On  his 
desk  the  President  finds  papers  relating  to  the  questions  that  are  apt  to 
come  up,  as  well  as  others  that  require  immediate  attention.  His  en- 
gagements are  subject  to  interruption  by  the  arrival  of  a  Cabinet  officer, 
a  Senator  or  Representative.  Each  visitor  is  made  to  feel  that  he  is  wel- 
come. More  than  any  recent  President  he  has  caused  his  political  oppo- 
nents to  find  it  a  pleasure  to  call.  At  times  he  persuades  them  of  the 
desirability  of  something  he  wishes  done,  so  it  is  often  difficult  to  muster 
an  aggressive  opposition  to  his  policies  among  the  minority.  Bitterly 
as  he  may  be  criticized  by  the  minority,  there  is  no  one  who  is  not  on 
friendly  terms  with  him. 

Of  the  many  thousand  letters  addressed  to  him  the  President  probably 
has  less  than  one  per  cent  brought  to  his  personal  attention.  They  are 
opened  in  the  executive  offices  and  those  of  importance  selected.  Mr. 
Cortelyou  signs,  or  has  stamped  with  a  fac-simile  of  his  signature,  every 
official  letter,  except  a  few  which  the  President  may  prefer  to  sign.  Of 
even  the  small  percentage  of  letters  laid  before  him  he  reads  few.  His 
secretary  states  briefly  the  contents  of  each  and  he  gives  the  necessary 
directions  or  dictates  an  answer. 

Since  the  beginning  of  his  first  administration  President  McKinley 
has  made  very  few  personal  appointments.  Practically  every  selection 
is  now  made  upon  the  recommendation  of  a  Senator;  sometimes  a 
Representative's  wish  is  influential,  while  a  Cabinet  officer's  approval 
is  final.  Generally  the  President  is  not  personally  acquainted  with  his 
appointees,  though  it  is  not  unusual  for  an  applicant  for  office  to  be 
presented  to  the  Executive.  This  furnishes  an  opportunity  to  take  his 
measure.  The  President  has  become  very  adept  in  judging  character. 
The  papers  in  a  case  are  briefed  at  the  department  to  which  the  office 
is  attached,  showing  the  names  of  those  indorsing  a  candidate  and  the 
Secretary's  view.  These  are  then  forwarded  to  the  President  and,  if 
the  office  is  a  local  one,  the  appointment  is  made  without  delay.  It  is 


8  AMERICAN   FEDERAL   GOVERNMENT 

remarkable  that  in  so  many  instances  the  President  has  some  knowl- 
edge of  the  candidate,  due  to  his  own  long  public  service  and  wide  ac- 
quaintance. Where  the  office  to  be  filled  is  sought  by  men  of  different 
States,  each  with  strong  political  backing,  the  selection  is  more  difficult. 
The  better  man  is  then  usually  chosen.  Small  things  will  decide  for  or 
against  an  applicant.  Too  many  indorsements,  showing  an  undue 
anxiety  for  office,  have  proved  fatal;  too  much  importuning,  until  the 
President  is  tired  of  the  candidate's  name,  has  killed  many  a  man's 
chances.  Where  there  are  no  complications  a  vacancy  is  filled  as  soon  as 
it  occurs.  When  claims  conflict 'more  time  is  required,  but  the  Presi- 
dent seldom  delays  long  in  making  an  appointment,  desiring  to  be  re- 
lieved of  the  pressure  and  to  get  his  difficulties  behind  him. 

Seldom  does  a  State  paper  go  without  the  President's  personality  im- 
pressed upon  it.  If  he  does  not  prepare  it  himself  he  generally  inspires 
it.  When  a  Cabinet  officer  prepares  a  paper  for  him  it  is  invariably 
altered  by  the  President  in  some  phrase  or  expression,  better  to  express 
or  qualify  a  meaning.  When  he  makes  a  change  it  is  usually  an  im- 
provement, no  matter  who  happened  to  prepare  the  document.  Cabinet 
officers  say  in  private  that  they  cannot  write  anything  that  will  pass 
muster  with  the  President  unless  he  makes  some  effective  correction. 
He  is  particularly  careful  with  proclamations.  Now,  a  Thanksgiving 
proclamation  may  seem  to  be  easily  drafted,  but  it  is  a  difficult  task. 
It  ought  to  be  original,  but  so  many  have  been  issued  that  originality 
is  almost  impossible.  Mr.  McKinley  begins  early  on  such  a  task,  and 
he  may  lay  the  first  or  second  draft  aside  for  a  week,  but  when  it  comes 
forth  it  is  a  gem,  emphasizing  that  for  which  the  nation  should  be  most 
thankful. 

In  writing  his  messages  President  McKinley  takes  the  greatest  pains. 
His  methods  of  preparation  vary  somewhat  each  year.  He  may  dictate 
almost  an  entire  message,  or  write  most  of  it  himself  with  pen  or  pencil. 
The  first  draft  simply  begins  the  work.  Long  before  it  is  written  notes 
have  been  made,  thoughts  jotted  down  and  a  list  of  subjects  is  prepared. 
That  is  often  changed.  It  is  a  guide  to  the  message.  Every  note  is  so 
marked  as  to  be  easily  identified.  The  President  may  be  in  his  room, 
when  an  idea  strikes  him;  it  is  noted;  he  may  be  walking  or  driving 
and  a  phrase  or  epigram,  exactly  expressing  some  thought  or  expression 
that  can  be  advantageously  used  is  not  lost  but  is  stored  away  for  future 
use.  This  is  one  of  his  methods  in  writing  speeches. 

About  the  third  week  in  October  the  real  work  of  getting  a  message 
ready  begins.  Each  subject  is  placed  under  a  separate  head.  It  is 
copied  on  tinted  slips,  about  four  by  eight  inches,  with  broad  spacing, 
so  as  to  leave  ample  room  for  alterations.  Each  slip  is  numbered,  dated, 
and  its  subject  noted  thus:  "Tariff-Draft  I,  Page  I,  October  iyth,  1900." 
The  notes  from  which  this  is  copied  are  also  marked  so  as  to  be  identi- 
fied ;  then  if  the  paper  is  lost  it  can  be  duplicated  or  identified.  Where 


THE   PRESIDENT  9 

figures  are  used  blanks  are  left  in  the  slips  for  them ;  afterward  they  are 
secured  at  the  Treasury  Department,  which  is  held  responsible  for  their 
accuracy.  Every  figure  or  statement  is  verified.  If  it  concerns  the 
Treasury,  it  is  proved  by  Secretary  Gage  through  his  Secretary.  If  a 
mistake  is  made  the  Treasury  Department  is  held  to  account.  The 
Department  of  State  prepares  for  the  Message  an  accurate  account  of 
the  conduct  of  foreign  affairs  for  the  year.  It  is  not  generally  used  in 
the  exact  form  in  which  it  comes.  It  may  be  too  long,  or  some  subject 
may  require  a  more  cautious  or  a  more  vigorous  handling.  Other  de- 
partments furnish  live  matter  and  the  President  takes  what  he  wants, 
but  it  is  all  rewritten  and  condensed.  The  President  has  been  known 
to  use  just  three  short  paragraphs  out  of  a  statement  ten  thousand  words 
long,  giving  in  detail  the  work  of  a  department  for  a  year,  and  even  then 
Congress  did  not  suffer  from  a  lack  of  information.  A  President's  mes- 
sage, at  least  a  McKinley  message,  is  not,  then,  a  patchwork,  but  is  a 
product  of  much  labor  and  painstaking  care. 

The  President  dictates  very  rapidly.  He  has  a  splendid  vocabulary, 
and  is  never  at  a  loss  for  a  word.  This  dictation,  after  being  typewritten, 
is  most  carefully  revised.  The  material  is  then  rearranged,  if  necessary, 
and  copied  again.  Then  it  goes  to  the  printer,  who,  after  it  is  set  up, 
takes  a  proof  on  unusually  wide  paper,  so  that  at  the  sides,  at  the  top, 
and  at  the  bottom,  there  is  ample  room  for  corrections.  This  revised 
proof  is  then  corrected  by  the  printer  and  another  proof  made  —  with 
every  revision  there  is  a  new  proof.  Sometimes  portions  of  the  message 
are  revised  ten  times.  It  is  hard,  patience-trying  work,  but  the  President 
takes  pains,  weighs  every  word  and  studies  every  phrase  with  scrupu- 
lous care,  correcting  or  rewriting  his  copy  until  he  is  perfectly  satisfied 
with  it.  The  greater  part  of  the  message  stands,  however,  as  at  first 
prepared.  Ordinarily  the  first  and  last  paragraphs  are  not  written  until 
a  day  or  two  before  the  message  goes  to  Congress,  but  when  it  is  finished 
it  is  a  complete  document  in  which  every  word  has  a  specific  purpose. 
President  McKinley's  messages  have  varied  from  thirteen  to  twenty- 
two  thousand  words,  depending  upon  what  must  be  said;  but  the  ten- 
dency is  for  messages  to  grow  in  length  as  more  subjects  must  receive 
treatment. 

Considering  the  amount  of  work  involved,  ever-present  and  onerous 
responsibilities  that  cannot  be  shifted,  importunities  for  place,  unceas- 
ing demands  upon  his  time  and  patience,  difficult  problems  pressing  for 
solution,  unending  routine,  criticisms,  misunderstandings,  and  frequent 
evidences  of  ingratitude,  the  President's  salary  is  inadequate.  This  is 
more  evident  when  it  is  recalled  that  out  of  it  the  expenses  for  enter- 
taining, that  custom  requires,  must  be  paid.  And  yet  these  drawbacks 
do  not  interfere  with  cultivation  of  the  Presidential  bee  by  every  man 
in  the  country,  who  would,  by  any  stretch  of  the  imagination,  be  re- 
garded as  eligible. 


II 

POWERS   OF   THE    EXECUTIVE 

[There  has  recently  been  much  discussion  of  the  proper  extent  of  the  execu- 
tive powers,  especially  in  the  national  government,  where  there  has  taken  place 
a  great  expansion  of  executive  functions.  By  many  men  this  tendency  has  been 
attacked  as  dangerous,  while  others  see  in  it  only  that  growth  of  governmental 
,  power  which  would  naturally  accompany  the  increase  in  national  wealth  and 
population.  The  speeches  of  Senator  Rayner  and  Representative  Towne, 
directing  themselves  against  the  expansion  of  the  executive  power,  will  serve  to 
bring  out  clearly  the  matter  in  controversy.  Allowance  being  made  in  all 
Congressional  speeches  for  partisan  bias,  the  attacks  of  the  opposition  will  often 
bring  out  most  clearly  new  political  developments.  Senator  Rayner's  speech 
was  made  in  the  debate  upon  the  President's  action  with  respect  to  San  Domingo. 
Mr.  Towne  was  speaking  on  party  politics  during  the  discussion  of  the  Con- 
sular and  Diplomatic  Appropriation  Bill.  For  a  good  general  treatment  of 
this  subject  see  Ford,  "  Rise  and  Growth  of  Am.  Politics,"  275.] 

FROM  A  SPEECH  OF  SENATOR  RAYNER1 

Now  let  us  look  for  a  moment  at  the  result  of  the  President's  construc- 
tion of  his  prerogative.  A  new  sect  of  political  scribes  have  commenced 
to  edit  a  revised  edition  of  the  Constitution.  They  call  it  the  unwritten 
Constitution.  They  are  framing  an  apocryphal  collection  of  epistles 
and  are  promulgating  their  heresy  from  academic  chairs  and  lecture 
platforms.  The  President  is  the  prophet  of  this  new  creed  and  the 
Messiah  of  this  strange  hallucination.  They  do  not  propose  to  add  any 
additional  chapters  to  the  original  manuscript,  but  they  insist  that  under 
the  general-welfare  clause,  which  is  simply  a  repetition  of  the  phrase 
that  was  used  in  the  Articles  of  Confederation,  this  Government  has  im- 
plied powers  not  enunciated  in  the  charter.  They  seem  to  forget  that 
Hamilton's  proposition  in  the  Constitutional  Convention  which  pro- 
vided that  Congress  was  to  have  power  to  pass  all  laws  whatsoever, 
subject  to  the  Executive  veto,  and  the  outline  that  he  communicated  to 
Mr.  Madison  that  the  Legislature  of  the  United  States  shall  have  power 
to  pass  all  laws  which  they  shall  judge  necessary  to  the  common  defense 

1  Congr.  Record,  Jan.  31,  1907. 
10 


POWERS    OF   THE   EXECUTIVE  n 

and  welfare  of  the  Union,  were  not  even  referred  to  the  committee,  and 
that  it  was  in  the  plan  presented  by  Patterson  and  by  Randolph  and  by 
Pinckney  that  there  was  finally  evolved  that  immortal  scheme  that  can 
never  be  recast  under  the  plastic  touch  of  political  necromancers  and 
enchanters. 

When  they  approach  the  executive  department  the  implication  be- 
comes unlimited,  and  under  the  distribution  of  Executive  power  the 
President  can  perform  all  functions  not  allotted  to  other  branches  of 
the  Government. 

I  know  that  Congress  has  enacted  a  great  many  laws  enabling  the 
President  to  perform  the  duties  confided  to  him,  by  the  Constitution. 
It  has  done  this  under  Article  I,  section  8,  subsection  18,  of  the  Con- 
stitution, which  provides  that  — 

Congress  shall  have  power  ...  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the  United  States,  or 
in  any  department  or  officer  thereof. 

Hamilton,  in  discussing  this  clause  of  the  Constitution,  said  that  — 

The  declaration  itself,  though  it  may  be  chargeable  with  tautology  or  re- 
dundancy, is  at  least  perfectly  harmless. 

There  has  been  a  considerable  diversity  of  opinion  upon  this  point. 
Chief  Justice  Marshall  illumined  the  proposition  in  this  manner.  He 
said: 

Should  Congress  in  the  execution  of  its  powers  adopt  measures  which  are 
prohibited  by  the  Constitution,  or  should  Congress,  under  the  pretext  of  execut- 
ing its  powers,  pass  laws  for  the  accomplishment  of  objects  not  entrusted  to  the 
Government,  it  would  become  the  painful  duty  of  this  tribunal,  should  a  case 
requiring  such  a  decision  come  before  it,  to  say  that  such  an  act  was  not  the 
law  of  the  land.  But  where  the  law  is  not  prohibited,  and  is  really  calculated  to 
effect  any  of  the  objects  entrusted  to  the  Government,  to  undertake  here  to 
inquire  into  the  degree  of  its  necessity  would  be  to  pass  the  line  which  circum- 
scribes the  judicial  department,  and  to  tread  on  legislative  ground.  This  court 
disclaims  all  pretensions  to  such  a  power. 

And  there  I  stand.  No  one  at  this  day  would  demand  a  literal  con- 
struction of  the  Constitution  which  would  deprive  the  President  of  per- 
forming functions  necessary  to  carry  out  the  powers  that  are  granted  to 
him;  on  the  contrary,  he  has  the  broadest  field  of  discretion  within 
which  to  adopt  and  exercise  whatever  methods  are  proper  for  this  pur- 
pose. What  I  insist  upon  and  contend  for  is  that  he  must  never  abuse 
his  constitutional  prerogative  by  invading  the  domain  of  other  depart- 
ments, and  must  never,  under  color  of  title,  assume  authority  upon  sub- 


12  AMERICAN   FEDERAL   GOVERNMENT 

jects  that  have  no  relation  to  his  office,  and  do  not  in  the  remotest  de- 
gree appertain  to  the  performance  of  his  executive  functions. 

We  know  that  every  word  of  the  Constitution  is  written.  We  know 
that  there  is  not  a  line  or  letter  that  anyone  has  the  right  to  insert.  The 
Supreme  Court  may  interpret,  it  may  construe  according  to  the  spirit, 
but  it  can  never  add  to  the  text.  The  Supreme  Court  may  hold  that  a 
given  act  of  the  Executive  is  not  an  interference  with  legislative  func- 
tions. It  may  broaden  the  right  of  the  President  to  negotiate  a  treaty, 
but  if  it  were  ever  to  decide  that  the  President  had  a  right  to  conclude 
a  treaty  without  the  constitutional  ratification  its  adjudication  would 
lead  either  to  impeachment  or  revolution.  Every  judgment,  decree, 
and  order  that  it  renders  must  be  under,  and  not  above  and  beyond, 
the  Constitution.  It  can  set  aside  an  act  of  Congress,  but  it  can  not 
abridge  or  extend  the  limits  of  the  charter.  What  the  Supreme  Court 
can  not  do  by  expression  the  Executive  ought  not  to  be  allowed  to  do 
by  implication. 

The  President  has  the  right  to  veto  any  enactment  that  we  may  pass. 
He  has  the  right,  if  he  chooses  to  do  so,  to  advise  with  members  in  ref- 
erence to  legislation,  and  to  make  any  suggestions  that  he  may  deem 
proper.  This  is  not  a  constitutional  prerogative,  and  its  propriety  has 
been  questioned  and  assailed,  but  I  am  willing  within  proper  bounds 
to  regard  it  as  an  incident  of  his  executive  functions.  One  thing  he  has 
no  right  to  do,  and  that  is  to  use  the  vast  public  patronage  at  his  dis- 
posal to  compel  obedience  to  his  views.  Another  thing  he  has  no  right 
to  do,  and  that  is  to  make  compacts  with  the  Speaker  of  the  House  of 
Representatives  or  its  committees,  to  accomplish  the  legislation  that  he 
desires,  or  prevent  legislation.  And  still  another  thing  he  has  no  right 
to  do,  and  that  is  beyond  his  messages,  in  which  he  is  given  the  right  at 
any  time  to  suggest  any  measure  he  may  deem  proper  or  necessary,  to 
interfere  with  legislation  and  to  force  Congress  either  to  adopt  his  recom- 
mendations or  if  it  rejects  them  to  bring  about  a  breach  between  the 
legislative  and  executive  departments  that  is  detrimental  to  the  best 
interests  of  the  country;  that  constitutes  an  assumption  of  dictatorial 
power  which  the  people  of  this  Republic,  in  the  course  of  time,  will  not 
submit  to,  I  care  not  how  great  the  achievement  or  how  much  it  may 
conduce  to  their  progress  and  welfare,  or  what  benefit,  advantage,  or 
prosperity  we  may  derive  from  its  accomplishment. 

In  order  to  show  that  I  have  not  at  all  exaggerated  the  claims  and 
pretensions  of  this  new  school  of  Executive  construction,  I  want  now  to 
refer  to  some  extracts  from  the  address  of  an  eminent  lawyer,1  deliv- 
ered before  the  New  York  State  Bar  Association,  in  which  the  doctrines 
of  this  creed  are  announced  in  such  unmistakable  and  unambiguous 
terms  that  we  are  no  longer  left  in  any  doubt  or  uncertainty  as  to  the 
evolution  and  development  that  we  are  undergoing  upon  the  cardinal 

1  Chas.  A.  Gardiner,  "  The  Constitutional  Power  of  the  President,"  1905. 


POWERS    OF   THE   EXECUTIVE  13 

principles  of  republican  government.  If  the  propositions  that  he  main- 
tains reflect  the  sentiment  of  the  people,  then  it  is  safe  to  say  that  the 
Constitution  is  a  thing  of  shreds  and  patches,  and  the  Government  that 
it  created  is  as  much  of  a  monarchical  institution  as  the  Government 
of  Great  Britain,  or  of  any  other  government,  with  the  exception  per- 
haps of  those  of  Russia  and  Turkey,  upon  the  Continent  of  Europe. 

Listen  now  for  a  moment  to  some  of  the  passages  from  this  delightful 
dissertation  upon  the  Executive  prerogative. 

1.  The  President  is  the  chief  invention  of  the  Constitution,  a  personal  magis- 
trate for  a  republic.  .  .  .     The  conversion  of  an  abstract  sovereignty  into  a 
concrete  sovereign. 

2.  The  executive  and  magisterial  attributes  of  the  Government  being  in- 
vested in  the  President,  it  follows  inevitably  that  the  President  must  possess 
the  executive  and  magisterial  attributes  of  the  people,  and  that  the  people  retain 
no  undelegated  attributes  or  passive  sovereignties  under  the  tenth  amendment 
or  otherwise. 

3.  If  Southern  States  abridge  the  privileges  and  immunities  of  Federal  negro 
citizens,  the  President,  on  his  own  initiative,  can  and  should  prohibit  such 
action,  whether  Congress  legislates  on  the  subject  or  not.    If  Southern  States 
deny  the  right  of  suffrage  to  Federal  negro  citizens  on  the  ground  of  race  or 
color,  the  President,  without  waiting  for  penalizing  statutes,  can  and  should 
use  every  means,  civil,  military,  or  both,  to  stop  it. 

4.  To  execute  all  his  omnipotent  functions  the  people  have  given  the  Presi- 
dent absolute  control  of  an  irresistible  physical  force,  the  Army  and  Navy  of 
80,000,000  people. 

5.  Such  are  the  powers  of  the  President,  express  and  implied.    They  are 
all  plenary.    The  office  and  power  to  execute  it  are  in  unqualified  language. 
The  power  to  execute  the  Constitution  is  without  limitation  or  restriction. 
The  power  to  administer  the  executive  sovereignties  is  complete,  and  the  implied 
powers  are  coextensive  with  the  express  grants.    Hence  all  the  powers  of  the 
President  are  unqualified,  plenary,  and  unlimited. 

And  now  for  some  of  the  thrilling  climaxes  of  this  remarkable 
production. 

Thus  my  ideal  of  the  President  coincides  with  the  ideal  of  the  people,  a 
majestic  constitutional  figure  uncontrolled  by  Congress,  unrestrained  by  the 
courts,  vested  with  plenary  constitutional  power  and  absolute  constitutional 
discretion. 

How,  then,  is  it  possible  for  the  President  to  exceed  his  express  constitutional 
authority?  What  Federal  act  can  he  perform  that  he  may  not  claim  is  in  execu- 
tion of  his  office  and  its  attributes,  of  the  Constitution  and  the  laws,  or  of  his 
executive  powers? 

Majesty  is  another  attribute.  It  inheres  in  every  sovereign,  be  he  Czar  or 
President.  Imperium  majestasque  populi  Romani. 

The  President  is  invested  with  an  office  and  the  whole  of  it  ....  Who  hath 
fixed  its  bounds?  Who  hath  said,  Thus  far  and  no  farther?  No  one  has 
determined  its  illimitable  extent;  no  one  can  determine  it  so  long  as  the 
Republic  endures. 


14  AMERICAN   FEDERAL   GOVERNMENT 

And  this  matchless  conglomeration  of  incoherent  absurdities  was  de- 
livered, Mr.  President,  before  an  assemblage,  every  man  of  whom  was 
probably  conversant  with  the  authorities  and  decisions  that  have  con- 
sistently placed  the  brand  of  judicial  condemnation  upon  this  frenzied 
exposition  of  executive  sovereignty. 

This  demonstrates,  Mr.  President,  that  the  entire  trouble  arises  from 
the  fact  that  the  Constitution  is  being  perverted  upon  the  grant  of  ex- 
ecutive power.  Article  II  of  the  Constitution  says  the  executive  power 
shall  be  vested  in  a  President  of  the  United  States  of  America.  This 
does  not  vest  executive  power  in  any  greater  degree  than  Article  I  vests 
legislative  power  when  it  says  that  all  legislative  powers  herein  granted 
shall  be  vested  in  a  Congress  of  the  United  States,  or  than  Article  III 
vests  judicial  power  except  in  the  Supreme  Court  of  the  United  States. 

I  plant  myself  upon  the  proposition  that  the  President  derives  no  au- 
thority whatever  from  this  clause.  Nearly  three-quarters  of  a  century 
ago  the  greatest  political  philosophers  who  ever  illustrated  the  pages  of 
American  history  settled  before  this  body  this  contention  so  that  it  has 
been  considered  a  constitutional  axiom  until  the  present  day.  This 
provision  of  the  Constitution  simply  relates  to  the  distribution  of  gov- 
ernmental functions  and  can  not  be  considered  in  the  light  of  a  grant. 

As  luminous  a  constitutional  argument  as  Webster  ever  made  was 
upon  this  precise  point.  The  President  must  derive  his  authority  from 
the  subsequent  provisions  of  the  instrument  that  contain  the  grant,  and 
the  entire  grant  of  power,  and  which  are  not  in  the  slightest  degree  en- 
larged by  the  clause  that  I  have  quoted.  His  school  of  disciples  evidently 
think  that  I  am  wrong  upon  this  point  and  are  bewildering*  the  mind  of 
the  rising  generation  upon  this  proposition.  If  we  were  to  pass  a  law 
here  to-day  reposing  in  the  President  a  governmental  function  beyond 
the  specifications  of  the  Constitution  and  not  necessary  for  the  exercise 
of  any  power  contained  in  the  specifications,  the  enactment  would  be 
void.  Now,  if  the  law  would  be  void,  what  power  has  the  President 
without  the  sanction  of  law  to  trespass  beyond  the  confines  of  his  prerog- 
ative ?  The  President  is  either  the  executive  officer  of  the  Government, 
vested  with  unlimited  executive  functions,  or  he  is  the  Executive  acting 
under  special  and  delegated  powers.  Which  is  he?  Is  he  the  general 
executive  agent  of  the  people,  or  their  immediate  representative,  as  was 
once  claimed  by  one  of  his  predecessors  who  also  had  an  erroneous  con- 
ception of  his  prerogative,  or  is  he  a  special  agent  who  shall  look  to  his 
commission  and  credentials  for  his  authority?  There  are  unlimited 
executive  acts  performed  by  monarchical  rulers,  the  exercise  of  which 
the  framers  of  the  Constitution  never  intended  to  repose  in  the  President, 
and  therefore  they  circumscribed  his  functions. 

I  am  aware  that  persons  who  are  not  familiar  with  the  source  of  or- 
ganic power  are  losing  sight  of  fundamental  distinctions  and  are  look- 
ing to  results  and  not  instrumentalities.  I  am  not  surprised  at  this  view, 


POWERS    OF   THE   EXECUTIVE  15 

but  I  am  surprised  that  any  men  occupying  the  highest  positions  in  the 
Government  and  instructors  and  text  writers  upon  constitutional  law 
should  at  this  hour  justify  a  doctrine  that  strikes  down  at  its  very  altar 
the  oracle  of  our  faith  and  substitutes  for  it  a  worship  that  is  only  tem- 
porary and  that  can  not  possibly  continue  and  endure.  The  day  will 
come,  Mr.  President,  I  predict  it  —  it  is  bound  to  come  —  when  this 
illusion  will  disappear,  when  the  people  will  retrace  their  steps,  and  as 
they  flee  from  the  pagan  temple  they  will  bear  upon  their  shoulders  the 
ark  of  the  covenant  and  the  scroll  of  the  ancient  law. 


FROM  A  SPEECH  OF  REPRESENTATIVE  TOWNE l 

It  is,  I  take  it,  well  within  the  province  of  a  member  of  this  popular 
representative  branch  of  the  National  Legislature  to  examine  and, 
within  the  limits  of  the  decencies  and  proprieties  of  parliamentary  dis- 
cussion, to  criticise  the  official  conduct  of  the  President  of  the  United 
States.  The  independence  of  the  legislative  branch  of  the  Government 
and  the  responsibilities  of  the  Executive  Office  justify  and  require  this 
liberty  of  comment. 

It  is,  in  my  deliberate  opinion,  a  very  serious  matter,  not  only  as  re- 
lated to  pending  and  immediately  prospective  public  questions,  but  as 
concerning  the  development  of  our  institutions  and  the  preservation  of 
that  wise  balance  of  power  among  the  coordinate  branches  of  this  Gov- 
ernment to  which  so  much  importance  was  originally  attached,  that  the 
present  Chief  Executive  of  the  country  is  disposed  to  magnify  and  to 
personalize  his  great  office  and  to  exercise  authority  beyond  not  only 
the  traditional  but  the  legal  and  constitutional  limitations  of  his  place. 
[Applause  from  the  Democratic  side.]  This  is  not  the  time  or  the  occa- 
sion, sir,  for  anybody,  and  certainly  not  for  one  no  more  competent  to 
the  task  than  I  can  claim  to  be,  to  attempt  anything  like  an  analysis  and 
final  judgment  upon  the  character  and  achievements  of  Theodore  Roose- 
velt, as  to  whom  future  historians,  as  has  been  the  case  with  his  con- 
temporaries, will  undoubtedly  differ  radically  among  themselves.  There 
will  be  panegyrists  and  detractors  hereafter,  as  there  are  eulogists  and 
faultfinders  now.  I  shall  attempt  no  ultimate  judgment.  I  shall  briefly, 
however,  comment  upon  certain  aspects  of  his  character,  and  upon  cer- 
tain of  his  official  performances,  for  the  purpose  of  drawing  what  seems 
to  me  to  be  necessary  and  helpful  conclusions.  There  are  many  things 
in  the  character  and  endowments  of  that  remarkable  man  that  I  have 
admired.  There  are  also,  on  the  other  hand,  many  things  that,  as  a 
representative  of  the  people  in  this  great  body,  I  feel  justified  in  pro- 
nouncing to  be  of  a  nature  to  unfit  him  for  a  judicious,  careful,  just,  and 
deliberate  discharge  of  high  executive  functions,  and  under  the  impul- 

1  Congr.  Record,  June  n,  1906. 


16  AMERICAN  FEDERAL   GOVERNMENT 

sion  of  which  he  has  time  and  again  gone  beyond  the  legitimate  bound- 
aries of  his  authority.  [Applause  on  the  Democratic  side.] 

This  tendency  of  the  Chief  Executive  is  a  matter  of  common  knowledge 
among  members  of  both  Houses  of  Congress  and  the  representatives  of 
the  newspaper  press  who  are  stationed  at  the  capital.  It  is  a  serious 
misfortune,  as  I  view  it,  that  the  unusual  vogue  enjoyed  by  the  President 
imposes  upon  Senators,  Representatives,  and  correspondents  a  reticence 
in  regard  to  these  excesses  of  Executive  authority  that  would  not  under 
ordinary  conditions  be  observed.  In  my  opinion  we  ought  to  be  honest 
with  the  people  of  the  United  States,  and  tell  them  frankly  what  every- 
body in  this  House  knows,  what  every  member  of  the  Senate  knows, 
and  what  everybody  in  the  press  galleries  knows,  that  the  President  of 
the  United  States  endeavors,  so  far  as  an  almost  phenomenal  activity 
and  endurance  will  permit,  to  embrace  within  himself  and  to  exercise 
at  once  almost  all  of  the  powers  and  prerogatives  of  the  three  coordinate 
branches  of  this  Government.  Moreover,  he  seems  to  regard  the  high 
and  solemn  duties  of  his  office  not  only  as  in  the  nature  of  personal  assets 
of  his  own,  but  as  appropriate  occasion  for  the  exercise  of  an  indeliberate 
and  whimsical  disposition  apparently  as  little  regardful  of  the  momen- 
tousness  and  significance  of  his  action  as  that  of  a  boy  occupied  with 
his  toys. 

The  reorganization  of  the  Army  has  emphasized  the  military  aspects 
of  the  Presidency.  The  President's  relation  to  the  Army  is  not  much 
different  from  that  sustained  by  the  Emperor  William  to  the  German 
army.  It  is  notorious  that  promotions  during  the  present  administra- 
tion have  been  made  in  a  manner  so  harmful  to  the  discipline  of  the 
service,  and  to  so  great  a  degree  upon  grounds  of  favoritism  and  per- 
sonal preference,  as  to  have  become  the  subject  of  repeated  and  solicitous 
conference  among  men  having  knowledge  of  the  situation  and  concerned 
with  the  preservation  of  the  morale  of  the  Army.  The  diplomatic  ser- 
vice has  fallen  under  the  same  influence.  The  Secretary  of  State,  al- 
though himself  a  man  of  great  ability  and  strong  personality,  has  had 
many  of  his  functions  shorn.  The  President's  relation  to  the  general 
body  of  the  service  is  much  more  intimate  and  direct  than  heretofore, 
and  we  have  recently  seen  how,  for  the  first  time  in  American  diplomacy, 
the  President  has  referred  to  a  high  representative  of  the  United  States 
at  a  foreign  court  as  "my  ambassador."  A  similar  personal  dominance 
is  asserted  in  the  province  of  every  Cabinet  office,  and  everybody  re- 
members the  promulgation  of  the  famous  "order  of  silence"  by  which 
those  high  functionaries  were  forbidden  to  talk  to  reporters  about  their 
business,  and  directed  to  leave  a  monopoly  of  publicity  to  the  head  of 
the  Government. 

The  civil-service  rules  have  been  made  conveniently  pliant  to  the 
personal  and  political  exigencies  of  the  Chief  Executive,  and,  although 
in  former  days  that  gentleman  filled  a  great  place  in  the  movement  for 


POWERS    OF   THE   EXECUTIVE  17 

civil-service  reform,  the  records  show  that  the  rules  have  been  set  aside 
during  his  administration  about  four  times  as  often  as  they  were  during 
his  predecessor's  term.  The  most  important  considerations  of  public 
policy  are  constantly  and  customarily  made  subservient  to  the  personal 
feelings  of  the  Chief  Magistrate.  The  evidence,  for  example,  to  which 
everybody  had  access,  disclosed  that  one  of  his  Cabinet  officers,  some 
time  since  resigned,  had  been  engaged,  while  occupying  a  high  official 
position  with  a  great  railroad  system,  in  repeated  violations  of  the  inter- 
state-commerce law ;  but  the  fact  of  his  close  official  and  personal  rela- 
tion to  the  President  not  only  relieved  him  from  prosecution  or  censure, 
but  actually  won  for  him  an  official  certificate  of  innocence  in  direct 
contradiction  of  even  his  own  confession. 

******** 

In  February,  1905,  Admiral  Walker  testified  that  he  and  other  members 
of  the  Panama  Canal  Commission,  on  the  President's  express  authoriza- 
tion, charged  and  received,  in  addition  to  their  regular  compensation, 
director's  fees  for  attending  the  meetings  of  the  board  of  directors  of 
the  Panama  Railroad.  Expenses  far  beyond  those  that  have  scandal- 
ized former  administrations  are  incurred  by  this  administration  with 
a  gay  and  easy  nonchalance  seemingly  justified  by  the  entire  lack  of 
subsequent  public  criticism.  Whereas  wide  and  unfavorable  comment 
was  made  upon  one  of  his  predecessors  for  too  frequent  use  of  one  Gov- 
ernment vessel,  very  little  is  now  said  about  the  employment  by  the 
President  of  the  United  States  of  the  Sylph,  the  Dolphin,  and  the  May- 
flower together.  White  House  repairs  are  undertaken  and  carried  out 
apparently  with  as  little  hesitancy  as  that  with  which  a  prosperous 
farmer  would  build  a  wood  shed;  and  $750,000  is  spent  in  alleged  in- 
crease of  the  facilities  and  attractions  of  the  Executive  Mansion,  where 
no  living  architect  can  possibly  see  where  there  was  opportunity  to  dis- 
burse more  than  a  seventh  of  that  sum  to  produce  the  very  unhandsome 
results.  Some  of  these  matters  to  which  I  have  referred  thus  cursorily 
may  seem  somewhat  trivial.  The  catalogue  is  not  exhaustive  even  of 
important  considerations.  I  cite  these  few  only  as  illustrative  of  that 
persistent  and  irrepressible  tendency  to  personalize  his  office,  to  regard 
it  as  an  appendage  to  his  will,  which  characterizes  the  present  occupant 
of  that  great  place. 

It  is,  moreover,  inevitable  that  a  man  possessing  the  characteristics 
of  the  President  should  trench  upon  the  traditional  and  constitutional 
restrictions  of  his  authority.  This  natural  inclination  is  unfortunately 
reenforced  by  certain  considerations  growing  out  of  the  political  condi- 
tions of  our  time.  In  the  first  place,  there  is  a  necessary  reaction  upon 
the  methods  of  our  Executive  Department  by  the  unavoidable  secrecy 
and  arbitrariness  with  which  the  affairs  of  our  colonial  possessions  are 
conducted.  It  is  yet  too  soon  for  us  fully  to  appreciate  the  irreparable 
damage  done  to  our  peculiar  institutions  by  the  rash  assumption  of  the 


i8  AMERICAN  FEDERAL   GOVERNMENT 

dangers  of  colonial  government.  From  the  commencement  of  the  de- 
parture in  our  experience  I  have  felt  the  deepest  concern  for  its  effect 
upon  that  constitutional  balance  among  the  different  departments  of 
the  Government  upon  which  our  elder  statesmen  placed  so  much  stress, 
and  upon  whose  permanent  preservation,  as  I  believe,  rests  to  a  very 
large  degree  the  perpetuity  of  civil  liberty  in  this  country.  In  the  course 
of  a  speech  on  our  Philippine  policy  in  the  Senate  of  the  United  States, 
on  the  28th  of  January,  1901,  I  used  the  following  language: 

This  policy  favors  the  growth  of  the  executive  department  of  the  Government 
at  the  expense  of  the  other,  and  is  opposed  to  democratic  principles.  It  involves 
singleness  of  authority,  celerity  of  action,  secrecy  of  purpose,  irresponsibility; 
all  contrary  to  the  necessary  methods  of  self-government.  It  begets  a  super- 
ficial admiration  for  "strong  government,"  and  "simple  government,"  which 
are  absolutely  inconsistent  with  liberty.  Let  me  again  quote  words  of  wisdom 
from  the  speech  of  Daniel  Webster,  already  cited: 

"Nothing  is  more  deceptive  or  more  dangerous  than  the  pretense  of  a  desire 
to  simplify  government.  The  simplest  governments  are  despotisms;  the  next 
simplest,  limited  monarchies;  but  all  republics,  all  governments  of  law,  must 
impose  numerous  limitations  and  qualifications  of  authority,  and  give  many 
positive  and  many  qualified  rights.  In  other  words,  they  must  be  subject  to 
rule  and  regulation.  This  is  the  very  essence  of  free  political  institutions. 

"The  spirit  of  liberty  is,  indeed,  a  bold  and  fearless  spirit;  but  it  is  also  a 
sharp-sighted  spirit;  it  is  a  cautious,  sagacious,  discriminating,  far-seeing 
intelligence;  it  is  jealous  of  encroachment,  jealous  of  power,  jealous  of  man. 
It  demands  checks ;  it  seeks  for  guards ;  it  insists  on  securities ;  it  intrenches 
itself  behind  strong  defenses,  and  fortifies  itself  with  all  possible  care  against 
the  assaults  of  ambition  and  passion. 

"It  does  not  trust  the  amiable  weaknesses  of  human  nature,  and,  therefore, 
it  will  not  permit  power  to  overstep  its  prescribed  limits,  though  benevolence, 
good  intent,  and  patriotic  purpose  come  along  with  it.  Neither  does  it  satisfy 
itself  with  flashy  and  temporary  resistance  to  illegal  authority.  Far  otherwise. 
It  seeks  for  duration  and  permanence.  It  looks  before  and  after;  and,  building 
on  the  experience  of  ages  which  are  past,  it  labors  diligently  for  the  benefit  of 
ages  to  come.  This  is  the  nature  of  constitutional  liberty,  and  this  is  our  liberty, 
if  we  will  rightly  understand  and  preserve  it.  Every  free  government  is  neces- 
sarily complicated,  because  all  such  governments  establish  restraints,  as  well 
on  the  power  of  government  itself  as  on  that  of  individuals." 

A  president  can  not  be  at  one  and  the  same  time  a  constitutional  chief  magis- 
trate and  an  autocrat —  a  President  in  America,  with  imperial  powers  in  the 
Orient. 

There  is  no  question  in  my  mind,  sir,  that  the  reaction  of  our  absolute 
government  in  our  distant  possessions  is  partly  responsible  for  the  ten- 
dency toward  Executive  excess,  at  which  all  close  students  of  our  insti- 
tutions are  now  gravely  concerned.  But  there  is  another  consideration 
which  reenforces  the  one  just  mentioned  and  the  natural  characteristics 
of  the  President.  I  refer  to  the  phenomenal  popular  majority  by  which 
the  present  Chief  Magistrate  was  chosen  in  the  election  of  1904.  The 


POWERS    OF   THE   EXECUTIVE  19 

country  had  full  notice  of  the  personality  of  the  Republican  candidate, 
and  was  told  from  every  Democratic  stump  what  would  be  the  inevitable 
tendency  of  the  expression  of  that  personality  if  it  should  receive  an 
emphatic  electoral  indorsement.  The  recipient  of  that  indorsement  can, 
in  one  sense,  hardly  be  blamed  if  he  considers  the  verdict  so  rendered 
with  such  emphasis  and  after  definite  notice,  as  in  the  nature  of  a  license 
to  exercise  his  predispositions  to  the  utmost.  The  result  has  certainly 
justified  the  prognostications.  It  is  only  fair  to  say,  however,  that  these 
actions  since  the  election  of  1904  have  merely  been  of  a  piece  with  those 
that  characterized  the  Presidency  of  the  present  incumbent  in  his  first 
fractional  term. 

Without  attempting  a  numerous  recitation,  to  say  nothing  of  an  ex- 
haustive one,  of  the  matters  that  may  readily  be  cited  in  illustration  of 
the  proposition  I  am  now  considering,  I  shall  mention  a  few  which  are 
of  common  knowledge. 

Everybody  remembers  the  famous  "pension  order"  whereby,  while 
a  bill  was  pending  in  Congress  concerning  a  classification  of  claimants 
before  the  Pension  Office,  an  Executive  order,  impatient  of  the  delay 
by  Congress,  undertook  to  perform  the  function  of  a  legislative  act. 
There  has  been  a  practically  constant  interference  from  the  White  House 
with  legislative  procedure  at  the  Capitol.  It  will  be  recalled  how  the 
Irrigation  Bill  was  threatened  with  a  veto  unless  it  should  contain  cer- 
tain provisions  agreeable  to  the  Executive.  The  great  struggle  over  the 
Cuban  tariff,  the  recent  controversy  about  statehood  for  Indian  Terri- 
tory and  Oklahoma  and  Arizona  and  New  Mexico,  and  over  the  pro- 
visions of  the  Railroad  Rate  Bill  are  a  few  among  many  matters  in 
regard  to  which  the  Executive  initiative  and  constant  participation  in  all 
the  complications  that  attend  the  progress  of  a  bill  from  its  inception  to 
its  passage,  might  well  raise  a  doubt  whether  there  is  any  such  thing 
now  in  our  system  of  government  as  an  independent  responsible  legisla- 
tive branch. 

The  Senate  of  the  United  States,  in  regard  to  those  semi-Executive 
functions  vested  in  it  by  the  Constitution,  has  been  treated  with  similar 
masterfulness.  Some  fifteen  months  ago  the  Arbitration  Treaties  were 
withdrawn  from  the  Senate  by  the  President  because  that  body  insisted 
upon  the  use  of  the  word  " treaty"  instead  of  " agreement,"  thus  refus- 
ing to  countenance  the  new  view  that  there  are  certain  permanent  in- 
ternational compacts  into  which  the  President  may  enter  on  behalf  of 
this  country  without  the  participation  of  the  Senate.  In  the  case  of 
the  Santo  Domingo  treaty  an  attempt  was  made  by  the  President  of  the 
United  States  to  make  a  treaty  with  a  foreign  government  without  the 
action  of  the  Senate,  which  treaty,  moreover,  involved  a  new  departure 
in  our  diplomacy  and  the  adoption  of  what  the  President  has  called  a 
"development"  of  the  Monroe  doctrine  potentially  fraught  with  the 
most  momentous  consequences  to  this  country. 


20  AMERICAN  FEDERAL   GOVERNMENT 

It  seems  to  me  that  this  is  a  good  connection  in  which  to  emphasize 
the  fact  that  this  new  doctrine  of  the  responsibility  of  the  United  States 
for  the  debts  and  defaults  of  the  South  American  States,  involving  on 
our  part  the  assumption  of  the  duties  of  constable  for  the  nations  of 
Europe,  ought,  whateyer  its  merits  or  demerits,  to  stand  upon  its  own 
pretentions  and  not  be  permitted  to  shelter  itself  behind  the  designation 
of  "Monroe  doctrine." 

The  Monroe  doctrine,  properly  so  called,  is  a  part  of  the  settled  policy 
of  this  Government,  and  is  very  dear  to  the  people  of  this  country.  A 
novel  proposition  may  frequently  find  acceptance  through  its  success  in 
borrowing  the  label  of  one  already  generally  entertained.  Whether  this 
new  international  theory  be  right  or  wrong,  it  ought  to  stand  or  fall  upon 
its  own  claims.  It  certainly  is  not  "Monroe  doctrine."  It  is  just  as 
clearly  "Roosevelt  doctrine."  The  original  Monroe  doctrine  of  1823  is 
very  easy  to  understand.  As  affirmed  by  Adams  and  Monroe,  it  involved 
three  things,  i.  The  American  continents  were  not  to  be  subject  to 
colonization  by  any  European  power.  2.  We  could  not  permit  any  in- 
tervention by  any  European  power  in  the  affairs  of  the  South  American 
Republics  "for  the  purpose  of  oppressing  them  or  controlling  in  any 
other  manner  their  destiny."  3.  We  could  not  permit  the  extension  by 
the  allied  powers  —  that  is,  the  members  of  the  "  Holy  Alliance,"  formed 
by  the  sovereigns  of  Russia,  Austria,  and  Prussia  after  the  congress  of 
Vienna  in  1815  — of  their  political  system  to  any  portion  of  North  or 
South  America. 

When,  about  1845,  President  Polk  practically  took  the  position  that 
it  was  the  duty  of  the  United  States  to  annex  adjacent  territory  in  order 
to  prevent  its  annexation  by  European  countries;  and  when,  in  1881, 
Mr.  Elaine  held,  in  substance,  that  the  United  States  was  the  sole  guar- 
dian of  transit  across  the  Isthmus  of  Panama  and  the  arbiter  of  disputes 
between  the  Latin-American  States;  and  when,  in  1895,  Mr.  Olney 
announced  that  the  United  States  is  sovereign  in  America,  that  the 
British  colonies  in  America  are  temporary,  and  that  these  propositions 
are  a  part  of  international  law,  the  prestige  of  the  Monroe  doctrine  was 
invoked  in  favor  of  these  various  formulations  of  our  international  policy. 
Yet  nothing  is  clearer  than  that  all  these  involved  distinct  variations 
from  the  Monroe  doctrine.  Undoubtedly  considerations  based  on 
national  advantage,  duty,  and  safety  could  be  advanced  on  the  one  side 
and  on  the  other  in  each  of  these  cases.  But  that  should  have  been  the 
only  method  of  argument.  To  introduce  the  Monroe  doctrine  was  only 
to  confuse  both  the  nature  of  that  doctrine  and  that  of  the  new  problems. 
The  same  is  true  in  regard  to  the  Roosevelt  doctrine  of  our  general 
guardianship  of  the  countries  to  the  south  of  us  with  responsibilities  to 
their  creditors.  Whether  right  or  wrong,  and  I  decidedly  believe  it  to  be 
wrong,  it  is  certainly  new,  and  it  ought  to  be  examined  on  its  merits  with- 
out receiving  any  shelter  or  warrant  whatever  from  the  Monroe  doctrine. 


POWERS    OF   THE   EXECUTIVE  21 

This  tendency  of  the  Executive,  upon  which  I  have  been  briefly  com- 
menting, has  involved  us  in  grave  national  wrong.  The  conduct  of  this 
Government  under  the  lead  of  the  President  of  the  United  States  in 
regard  to  the  means  by  which  the  independence  of  Panama  was  recog- 
nized and  the  arrangements  were  made  for  the  construction  of  the 
Panama  Canal  is,  in  my  opinion,  an  idelible  stain  upon  the  fair  fame 
and  good  faith  of  this  Government.  In  order  that  the  object  had  in 
view  by  the  President  should  be  achieved  it  was  necessary  to  override 
a  statute  of  the  United  States,  to  break  a  solemn  treaty  with  a  foreign 
government,  and  to  commit  an  act  of  war,  and  without  authority  of 
Congress,  against  a  people  with  whom  we  were  at  peace.  The  law 
known  as  the  Spooner  Act  expressly  directed  the  President  of  the  United 
States  to  proceed  with  the  construction  of  the  Nicaragua  Canal  if,  within 
a  reasonable  time,  he  could  not  secure  the  consent  of  the  Government 
of  the  United  States  of  Colombia  to  the  treaty  providing  for  the  con- 
struction of  the  canal  across  the  Isthmus  of  Panama.  That  consent  he 
did  not  obtain. 

It  is  beside  the  question  to  contend  that  the  United  States  of  Colombia 
ought  to  have  ratified  the  treaty.  It  is  an  independent  government  and 
had  a  right  to  reject  the  treaty  if  it  chose  to  without  giving  us  any  reason 
whatever.  But,  upon  the  rejection  of  the  treaty,  instead  of  proceeding 
to  carry  out  the  plain  and  specific  direction  of  the  act  of  Congress  to 
construct  the  Nicaragua  Canal,  the  President  of  the  United  States  recog- 
nized the  independence  of  Panama,  a  revolted  province  of  the  United 
States  of  Colombia,  used  the  armed  forces  of  the  United  States  to  pre- 
vent Colombia  from  reestablishing  her  authority  over  that  territory, 
despite  our  solemn  engagement  in  the  treaty  of  1846  to  respect  the  in- 
tegrity of  her  domain;  which  was  unquestionably  an  act  of  war  upon 
our  part,  made  a  treaty  with  the  new  State,  and  proceeded  with  what 
difficulties  and  scandals  the  world  is  aware,  to  the  present  stage  of  the 
canal  construction  across  the  Isthmus.  There  have  not  been  wanting 
grave  insinuations  touching  our  complicity  in  the  revolution  of  Panama 
against  Colombia.  Certainly  the  appearance  of  our  gunboats  at  a  time 
and  place  when  and  where  Bunau  Varilla  had  promised  the  revolu- 
tionists they  should  appear,  and  their  effectual  action  in  defeating  any 
attempt  by  Colombia  to  recover  her  province,  are  circumstances  strongly 
confirmatory  of  the  suspicion ;  nor  does  the  suspicion  involve,  if  justified, 
any  greater  dishonor  on  our  part  than  that  which  already  attaches  to 
us  from  the  admitted  circumstances. 

Not  long  ago,  in  a  remarkable  special  message  to  Congress,  the  Presi- 
dent strayed  into  the  judicial  reservations  of  the  Constitution  by  bring- 
ing to  book  a  Federal  judge  (Humphrey)  for  an  opinion  rendered  by 
him  in  the  ordinary  discharge  of  his  judicial  functions,  an  unprecedented 
proceeding  that  would  have  jarred  the  credulity  of  "the  fathers." 


22  AMERICAN   FEDERAL   GOVERNMENT 


DEBATE   ON  THE  WAR  POWER1 

[The  President's  action  in  dismissing  a  company  of  colored  soldiers  led  to  a 
debate  in  the  Senate  in  which  the  power  of  the  president  as  commander  in  chief 
of  the  army  was  discussed.  The  main  point  at  issue  was  the  relation  of  the 
power  of  Congress  "to  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces,"  to  the  functions  and  powers  of  the  president  as  commander 
in  chief.  The  respective  arguments  are  brought  out  clearly  in  the  following 
extracts  from  the  debate  between  Senator  Spooner  and  Senator  Bacon.] 

MR.  SPOONER.  Mr.  President,  my  differences  with  the  distinguished 
Senator  from  Ohio  are  upon  the  legal  phases  of  this  matter  mainly,  and 
with  many  of  the  principles  of  law  which  he  announces  I  am  entirely  in 
accord  with  him.  That  this  is  a  country  of  law,  that  no  Federal  official 
can  be  above  the  Constitution,  that  the  President  can  lawfully  exercise 
no  power  which  he  does  not  derive  from  that  instrument  or  the  laws  of 
Congress  enacted  in  pursuance  of  it,  of  course  all  must  admit.  That 
we  may  not  in  some  circumstances  have  what  would  be  in  other  circum- 
stances autocratic  power  in  this  country  I  can  not  say,  because  in  its 
very  nature  the  discipline  and  conduct  of  an  army  requires  more  or  less 
the  summary  exercise  of  power.  No  one  knows  that  better  than  .the 
chivalrous  and  gallant  soldier  who  introduced  and  advocates  this  resolu- 
tion. The  very  idea  of  command,  which  can  not  be  dissociated  from  a 
commander  in  chief,  involves  more  or  less  autocratic  power.  Under 
our  system  many  safeguards  have  been  thrown  around  its  exercise. 

I  am  not  opposing  the  resolution  of  investigation  of  the  Brownsville 
affair,  properly  worded.  I  do  object,  however,  to  the  resolution  as  in- 
troduced by  the  Senator  from  Ohio  and  now  pending.  The  inevitable 
trend  of  the  debate  on  Saturday  and  to-day  has  strengthened  me  in  my 
objection  to  it.  It  has  been  discussed  rather  as  a  case  in  court  than  as 
a  legislative  function.  If  the  President  has,  as  the  Senator  from  South 
Carolina,  and  perhaps  others,  seem  to  think,  exercised  a  power  which 
under  the  Constitution  and  the  laws  of  the  country  he  does  not  possess, 
and  in  a  manner  greatly  to  the  prejudice  of  citizens,  it  is  quite  clear  to 
me  that  the  Senate  ought  not  to  enter  upon  an  investigation  of  it.  Even 
if  a  President  abuses  the  power  which  he  possesses  or  exercises  it  with 
bad  motive,  I  should  greatly  deplore  an  attempt  by  the  Senate  to  in- 
vestigate it  or  pass  judgment  upon  it. 

In  our  system  the  powers  of  government  are  distributed  among  three 
branches,  each  coordinate  and  independent  of  the  other,  neither  of  which 
is  responsible  to  the  other  in  any  manner,  except  as  prescribed  by  the 
Constitution.  The  President  is  not  responsible  under  the  Constitution 
to  the  Senate  or  to  the  House  of  Representatives  or  to  both.  It  is  espe- 
cially not  the  function  of  the  Senate  to  investigate  and  determine  whether 
the  President  has  usurped  power  or  abused  a  power  which  he  possesses, 

1  Congr.  Record,  Jan.  19,  1907. 


POWERS    OF   THE   EXECUTIVE  23 

because  under  the  Constitution  the  Senate  sustains  a  peculiar  relation 
to  the  President.  Of  course  it  is  one  of  the  legislative  bodies  of  the 
Congress.  It  is  equal  in  power,  in  respect  of  legislation,  to  the  other, 
with  one  exception.  It  is  not  permitted  to  originate  revenue  bills.  But, 
Mr.  President,  peculiar  functions  have  been  conferred  upon  the  House 
as  to  some  matters,  and  upon  the  House  alone,  and  also  upon  the  Senate 
to  the  exclusion  of  the  House.  None  of  them  are  legislative  functions. 
The  Senate  participates  in  the  making  of  the  laws  as  a  legislative  body. 
It  participates,  with  the  President,  in  appointments,  which  is  not  a 
legislative  function.  It  participates  in  the  exercise  of  the  treaty-making 
power.  But,  Mr.  President,  its  most  solemn  function  under  the  Con- 
stitution is  a  judicial  one.  Section  3  of  the  first  article  provides : 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments.  When  sitting 
for  that  purpose  they  shall  be  on  oath  or  affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief  Justice  shall  preside,  and  no  person  shall 
be  convicted  without  the  concurrence  of  two-thirds  of  the  members  present. 

Section  2  of  the  same  article  provides  that  the  House  "shall  have  the 
sole  power  of  impeachment."  The  power  of  impeachment  is  as  plainly 
and  exclusively  vested  in  the  House  of  Representatives  as  is  the  power 
io4ry  impeachments  vested  in  the  Senate.  Investigations  to  determine 
or  which  will  determine  whether  an  Executive  act  is  violative  of  the 
Constitution  and  beyond  the  power  of  a  President,  or  whether,  if  within 
his  power,  it  has  been  abused,  if  that  is  the  object  of  the  inquiry,  surely 
is  properly  with  the  impeaching  body,  and  should  not  be  exercised  by 
the  body  which  alone  can  constitutionally  try  and  determine.  Of  course 
this  is  an  abstraction  as  to  this  case  and  as  to  this  President,  but  to  my 
mind  (I  have  had  occasion  to  urge  it  here  before)  it  is  a  principle  which 
ought  not  to  be  disregarded  by  the  Senate,  for  it  would  be  a  horrid  thing 
if  when  articles  of  impeachment  of  an  officer  reach  this  Chamber  they 
should  be  laid  before  a  court  which  in  another  capacity,  having  investi- 
gated and  considered  the  same  matter,  had  prejudged  it. 

Mr.  President,  so  much  for  that.  If  a  President,  whether  in  his  capac- 
ity of  Chief  Executive  or  as  Commander  in  Chief,  has  performed  an  act 
or  made  an  order  which  was  within  his  authority  to  make,  I  can  not  see 
that  it  is  competent  for  this  body  or  the  other,  or  both,  to  take  testimony 
as  to  the  wisdom  of  that  executed  act,  upon  which  to  determine  whether 
it  will  by  legislative  act  set  it  aside.  The  Congress,  if  dissatisfied,  may 
withdraw  the  power  or  place  additional  limitations  upon  its  exercise 
for  the  future,  but  I  do  not  see  that  it  can  by  legislation  render  void  the 
act.  When  a  power  is  possessed  by  the  President  or  an  officer  of  the 
Government  to  do  an  act  in  a  defined  contingency  or  in  his  discretion, 
his  decision  as  to  the  existence  of  the  contingency  or  that  circumstances 
are  such  as  to  demand  the  performance  of  the  act  is  conclusive,  and  the 
act  can  not  be  impeached  or  overturned  by  the  Congress  because  in  its 


24  AMERICAN   FEDERAL   GOVERNMENT 

opinion  the  exigency  had  not  arisen  or  that  the  power  was  unwisely  ex- 
ercised. The  general  rule  is  well  stated  by  the  Supreme  Court  in  the 
case  of  Martin  v.  Mott  (12  Wheat.,  19)  thus: 

Whenever  a  statute  gives  a  discretionary  power  to  any  person,  to  be  exercised 
by  him  upon  his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction 
that  the  statute  constitutes  him  the  sole  and  exclusive  judge  of  the  existence  of 
those  facts.  And  in  the  present  case  we  are  all  of  opinion  that  such  is  the  true 
construction  of  the  act  of  1795. 

Which  authorized  the  President  "whenever  the  United  States  shall 
be  invaded,  or  be  in  imminent  danger  of  invasion  from  any  foreign 
nation,  etc.,  it  shall  be  lawful  for  the  President  of  the  United  States 
to  call  forth  such  number  of  the  militia  of  the  State  or  States  most  in 
danger,"  etc. 

It  is  no  answer  that  such  a  power  may  be  abused,  for  there  is  no  power  which 
is  not  susceptible  of  abuse.  The  remedy  for  this,  as  well  as  for  all  other  official 
misconduct,  if  it  should  occur,  is  to  be  found  in  the  Constitution  itself.  In  a 
free  government  the  danger  must  be  remote,  since  in  addition  to  the  high 
qualities  which  the  executive  must  be  presumed  to  possess  of  public  virtue  and 
honest  devotion  to  the  public  interests,  the  frequency  of  elections,  and  the 
watchfulness  of  the  representatives  of  the  nation  carry  with  them  all  the  checks 
which  can  be  useful  to  guard  against  usurpation  or  wanton  tyranny. 

The  principle  is  peculiarly  applicable  to  a  lawful  order  made  by  the 
President  as  Commander  in  Chief  of  the  Army  and  Navy. 

I  am  assuming  now  that  the  President  possessed  the  lawful  authority 
to  make  the  order  discharging  without  honor  the  enlisted  men  of  the 
battalion  of  the  Twenty-fifth  Infantry  at  Brownsville.  The  fact  that 
he  made  such  an  order  does  not  need  investigation.  The  reports  and 
papers  upon  which  he  based  it  are  in  the  possession  of  the  Senate,  and 
the  inquiry  into  the 'discharge,  and  it  seems  to  be  limited  to  that,  is  as 
to  the  wisdom  and  justness  of  the  order,  and  the  adequacy  of  the  in- 
formation upon  which  the  President  based  it ;  in  other  words,  as  it  has 
been  put,  for  the  purpose  of  affording  to  the  enlisted  men  discharged 
a  day  in  court. 

Aside  from  the  general  principle,  which  is  sufficient,  I  deny  that  under 
the  Constitution  the  Congress  has  any  such  relation  to  the  Army  as 
permits  it  to  set  aside  an  order  lawfully  made  by  the  President  as  Com- 
mander in  Chief.  The  provisions  of  the  Constitution  which  bear  upon 
the  subject  are  few  and  simple.  The  Senator  from  Ohio,  who  is  a  very 
able  lawyer,  and  has  said  all  that  can  be  said  by  anyone,  I  think,  in 
support  of  his  contentions,  read  them. 

Congress  is  given  power  to  declare  war,  which  necessitates  the  use 
of  an  army  or  navy,  or  both.  Congress  is  given  power  to  raise  and  sup- 
port armies,  with  the  limitation  that  "no  appropriation  of  money  to 


POWERS    OF   THE   EXECUTIVE  25 

that  use  shall  be  for  a  longer  term  than  two  years."  Congress  is  given 
power  in  addition  to  make  "rules  for  the  government  and  regulation  oj 
the  land  and  naval  forces"  The  Constitution  provides,  in  section  i  of 
Article  II,  that  "the  executive  power  shall  be  vested  in  a  President  of 
the  United  States,"  and  in  section  2  that  "the  President  shall  be  Com- 
mander in  Chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the 
militia  of  the  several  States  when  called  into  actual  service  of  the  United 
States." 

The  provisions  quoted  from  the  Constitution  as  to  the  power  of  Con- 
gress in  respect  to  the  Army  and  Navy  are  logical  and  plain.  They 
admirably  express  the  manifest  purpose  of  the  framers  of  the  instrument. 
I  will  consider  them  later. 

The  Constitution  has  left  entirely  without  definition  the  scope  of  the 
power  of  the  President  as  Commander  in  Chief,  and  the  measure  of  the 
power  was  left  to  be  sought  elsewhere.  I  can  not  agree  that  the  sole 
Constitutional  power  of  the  President  is  to  command  the  Army  in  time 
of  war  and  conduct  campaigns.  That  his  power  is  vastly  greater  in  time 
of  war  than  in  time  of  peace  has  been  decided,  and  is  not  open  to  dis- 
pute. It  is  largely  to  be  sought  in  the  law  of  nations  and  the  rules  of 
civilized  warfare.  But  an  army  and  a  navy  must  be  commanded  in 
time  of  peace,  as  well  -as  in  time  of  war,  else  neither  would  be  fit  for  war. 
What  the  measure  and  scope  of  this  power  is  in  time  of  peace  is  not 
necessary  at  this  time  to  discuss.  That  it  is  the  power  to  command, 
with  all  that  is  inherent  in  the  function  and  necessary  to  its  exercise, 
can  not  well  be  disputed,  and  that  whatever  the  power  is  is  conferred 
by  the  Constitution  and  can  not  be  interfered  with  by  the  Congress 
will  not  be  denied. 

I  quite  agree  with  the  Senator  from  Ohio  that  we  need  not,  even  if 
we  may,  seek  the  measure  of  this  power  in  the  power  of  the  King  at  the 
time  of  the  adoption  of  the  Constitution.  There  is  something  to  be  said 
on  both  sides  of  the  proposition.  Some  courts  have  referred  to  the  power 
of  the  King  as  furnishing  some  guide  as  to  the  Constitutional  power  of  the 
President  as  Commander  in  Chief.  It  is  said  in  the  opinion  of  Judge 
Knott,  speaking  for  the  Court  of  Claims  in  the  case  of  Street  v.  United 
States  (24  Court  of  Claims,  230),  after  referring  to  the  power  of  the 
Crown  at  the  time  of  the  adoption  of  the  Constitution  exclusively  to 
control  the  British  army,  that  — 

This  power  of  command  and  control  the  framers  of  the  Constitution  placed 
in  the  hands  of  the  President,  with  only  two  restrictions  set  upon  it:  That 
Congress  should  have  power  "to  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces;"  that  the  appointment  of  officers  should  be  "by 
and  with  the  advice  and  consent  of  the  Senate." 

The  President  can  remove  any  officer  of  the  Army  or  Navy  without 
cause  by  appointing,  by  and  with  the  advice  and  consent  of  the  Senate, 


26  AMERICAN  FEDERAL  GOVERNMENT 

another  to  supersede  him.  This  was  settled  in  the  Mullen  case  (140  U.  S. 
240).  The  practice  has  wisely  made  the  tenure  of  military  and  naval 
office  ''practically  for  life  or  during  good  behavior."  But  I  speak  of 
the  power. 

In  Ex  parte  Milligan  (4  Wallace,  2),  quoted  by  the  Senator  from  Ohio, 
was  involved  the  power  of  the  President  to  establish  martial  law  in  In- 
diana and  the  validity  of  the  trial  of  a  citizen  by  military  commission 
upon  the  charge  practically  of  giving  aid  and  comfort  to  the  enemy. 
Milligan  and  others  were  sentenced  to  death  by  the  military  commis- 
sion, and  the  court  held  properly  that,  as  Indiana  was  not  in  any  sense 
the  theatre  of  war,  the  civil  government  there  was  in  full  operation,  and 
the  courts  discharging  uninterruptedly  their  functions,  martial  law  could 
not  lawfully  be  put  in  operation  in  Indiana  and  that  a  military  commis- 
sion could  not  lawfully  try  and  condemn  a  citizen.  In  the  opinion,  upon 
the  general  subject  which  I  am  discussing,  the  court  say : 

Congress  has  the  power  not  only  to  raise  and  support  and  govern  armies, 
but  to  declare  war.  It  has,  therefore,  the  power  to  provide  by  law  for  carrying 
on  war.  This  power  necessarily  extends  to  all  legislation  essential  to  the  prose- 
cution of  war  with  vigor  and  success,  except  such  as  interferes  with  the  command 
of  the  forces  and  the  conduct  of  campaigns.  That  power  and  duty  belong  to 
the  President  as  Commander  in  Chief.  Both  these  powers  are  derived  from 
the  Constitution,  but  neither  is  denned  by  that  instrument.  Their  extent  must 
be  determined  by  their  nature  and  by  the  principles  of  our  institutions. 

The  power  to  make  the  necessary  laws  is  in  Congress ;  the  power  to  execute 
in  the  President.  Both  powers  imply  many  subordinate  and  auxiliary  powers. 
Each  includes  all  authorities  essential  to  its  due  exercise.  But  neither  can  the 
President;  in  war  more  than  in  peace,  intrude  upon  the  proper  authority  of 
Congress,  nor  Congress  upon  the  proper  authority  of  the  President.  Both  are 
servants  of  the  people,  whose  will  is  expressed  in  the  fundamental  law. 

It  must  be  certain  that  where  Congress  has  failed  to  make  rules  for 
the  discipline  of  the  Army  the  power  of  command  lodged  in  the  Presi- 
dent carries  with  it  authority  in  him  to  issue  an  order  absolutely  neces- 
sary to  the  discipline  of  the  Army.  An  army  without  discipline,  Mr. 
President,  is  a  mob.  Instead  of  being  a  shield  and  a  protection  to  the 
people  it  is  a  menace.  It  is  more  dangerous  to  those  who  maintain  it 
than  it  is  to  the  enemies  of  the  country. 

******** 

Mr.  BACON.  My  opinion,  Mr.  President,  as  to  the  power  of  the  Com- 
mander in  Chief  is  this:  I  do  not  think  every  power  exercised  by  the 
Commander  in  Chief  must  be  dictated  by  Congress.  I  think  there  are 
certain  natural  functions  of  a  commander  in  chief  which,  in  the  absence 
of  restrictions  on  the  part  of  Congress,  any  commander  in  chief  can  ex- 
ercise —  those  which  are  usually  exercised.  But  at  the  same  time  I 
think  there  is  none  which  can  not  be  restricted  or  controlled  by  Congress. 


POWERS    OF   THE   EXECUTIVE  27 

If  the  Senator  will  pardon  me  for  a  moment  —  I  fear  that  I  trespass 
unduly  upon  his  time,  but  I  will  take  the  time  with  his  permission  — • 
just  to  state  the  proposition  that  all  the  clauses  of  the  Constitution  in 
connection  with  the  grant  of  power  to  Congress  which  I  have  just  read 
indicate  the  very  great  solicitude  and  earnest  intention  on  the  part  of  the 
framers  of  the  Constitution  to  take  away  from  any  one  man  the  power 
to  wield  the  Army  independently  of  Congress ;  and  even  so  jealous  were 
they  of  the  power  that  they  were  not  willing  even  that  Congress  should 
have  an  undue  exercise  of  that  power,  but  that,  as  in  the  case  of  the 
limitation  of  the  length  of  appropriations,  they  must  go  back  to  the 
people  every  two  years  for  the  purpose  of  getting  that  which  alone  can 
sustain  an  army.  Now,  let  me  read  those  several  propositions  for  the 
purpose  of  illustrating  the  position  that  the  evident  purpose  of  the  Con- 
stitution was  to  take  away  from  any  one  man  the  dangerous  power  of 
unrestrained  control  and  government  of  the  Army.  They  had  too  much 
reason  to  fear  and  to  dread  it. 

******** 

I  say  that  all  those  general  grants  of  power,  endeavoring  to  reach  every 
phase  of  the  important  things  which  relate  to  the  raising  of  armies  and 
to  the  government  of  armies,  are  laid  down  in  this  succession  of  pro- 
visions in  a  way  which,  to  my  mind,  clearly  points  to  the  purpose  of  the 
framers  of  the  Constitution  that  the  great  power  which  would  be  lodged 
in  one  man  if  he  had  the  power  to  wield  an  army  without  restriction 
should  be  denied  to  the  President  and  should  be  given  the  Congress; 
and  that  the  sole,  indefeasible  grant  of  power  given  to  him  was  that  he 
should  be  Commander  in  Chief,  to  exercise  that  great  office  subject  to 
the  superior  power  of  Congress  to  prescribe  the  rules  for  the  govern- 
ment and  regulation  of  the  Army.  "Government,"  I  repeat,  is  a  term 
which  can  not  be  qualified.  It  is  complete  and  entire  and  does  not  mean 
partial  government. 

The  Senator  from  Wisconsin  will  pardon  me  for  having  trespassed  so 
much  upon  his  time. 

Mr.  SPOONER.  Congress  may  locate  a  fort  in  the  State  of  Georgia. 
Can  Congress  pass  an  act  providing  that  certain  troops  shall  be  assigned 
to  that  fort  ? 

Mr.  BACON.     I  have  not  the  slightest  doubt  of  it ;  not  a  particle. 

Mr.  SPOONER.     What  is  there  to  this  Commander  in  Chief? 

Mr.  BACON.  The  Commander  in  Chief  is  to  command  the  Army, 
subject  to  the  power  of  the  Congress  to  prescribe  what  shall  be  done  in 
its  government.  The  government  of  an  army  refers  as  much  to  where 
it  shall  be  located  as  to  what  uniform  it  shall  wear. 

Mr.  SPOONER.     I  mean  particular  troops. 

Mr.  BACON.  I  am  speaking  of  particular  troops.  Congress  can  pre- 
scribe that  the  uniform  of  the  artillery  shall  be  red 

Mr.  SPOONER.     Of  course. 


28  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  BACON.    And  the  uniform  of  the  cavalry  yellow  or  buff. 
Mr.  SPOONER.     I  admit  all  that. 

Mr.  BACON.  It  may  prescribe  that  there  shall  be  so  many  troops  in 
this  place  and  that  many  in  the  other. 

With  all  due  respect  and  the  greatest  regard  for  the  judgment  of  the 
Senator  from  Wisconsin,  I  beg  to  say  that  I  have  never  heard  on  the 
floor  of  the  Senate  a  doctrine  which,  to  my  mind,  was  more  dangerous 
to  the  institutions  of  this  country  than  the  doctrine  that  the  President 
of  the  United  States  has  any  power  in  the  use  of  the  Army  which  can  not 
be  controlled  by  the  law-making  power  of  the  land,  except  the  power  to 
command. 

Mr.  SPOONER.  Mr.  President,  yesterday  when  I  yielded  the  floor 
I  was  in  the  midst  of  a  colloquy  with  the  Senator  from  Georgia  [Mr. 
BACON],  with  whom  I  agree  in  part,  but  with  whom  I  am  compelled  in 
part  to  disagree.  I  would  not  minimize,  and  never  have  consciously, 
the  power  of  Congress,  nor  would  I  exaggerate  in  anywise  the  power  of 
the  Executive.  My  proposition  —  and  I  do  not  intend  to  spend  much 
time  upon  it  —  concedes  to  Congress  the  full  power  which  I  think  it 
possesses  under  the  Constitution  with  reference  to  the  Army,  and  it  is 
very  large,  of  course. 

Congress  is  given  power  to  raise  and  maintain  armies  and  to  provide 
a  navy.  The  size  of  the  Army  is  entirely  for  Congress  to  determine. 
The  character  of  the  Army  as  to  different  branches  of  the  service  is  en- 
tirely for  Congress  to  determine.  The  grade  of  officers  and  the  number 
of  officers  are  for  Congress  to  determine.  The  oath  of  enlistment,  the 
contract  of  enlistment  are  for  Congress  to  determine.  The  duration  of 
the  term  of  enlistment  is  for  Congress  to  determine.  The  pay  and  all 
that  is  for  Congress  to  determine.  The  establishment  of  military  tribu- 
nals, the  definition  of  military  offenses,  the  method  of  military  trials, 
and  the  punishment  that  is  to  be  administered  are  for  Congress  to  de- 
termine. Congress  determines  where  it  will  have  military  posts  and 
where  it  will  not. 

Congress  may  reduce  the  Army  and  provide  for  the  muster  out  of 
officers,  as  it  has  often  done,  and  may  provide  for  the  discharge  of  en- 
listed men,  as  it  has  always  done,  and  which  is  always  a  part  of  the  con- 
tract of  enlistment.  Congress  can  not  make  a  contract  -for  service  in 
the  Army  with  an  officer,  or,  I  think,  with  an  enlisted  man,  which  would 
be  a  contract  protected  by  the  Constitution  of  the  United  States  against 
the  power  of  the  same  or  a  succeeding  Congress  to  reduce  the  Army, 
muster  out  officers,  and  discharge  enlisted  men. 

See  Crenshaw  v.  United  States,  Mr.  Justice  Lamar  (134  U.  S.  99). 

The  power  of  Congress  to  make  rules  for  the  government  and  regula- 
tion is  a  large  one,  but  it  is  manifestly  to  be  exercised  in  the  manner 
clearly  indicated  by  the  clause  itself. 

I  can  not  agree  with  the  Senator  from  Georgia  that  the  Commander 


POWERS    OF   THE   EXECUTIVE  29 

in  Chief,  either  in  time  of  peace  or  war,  is  under  the  supreme  control  of 
Congress.  The  Constitution  need  not  have  made  the  President  the 
Commander  in  Chief.  Wisely,  however,  it  did  so,  combining  with  ex- 
ecutive power  the  power  of  command.  It  is  conceded  by  the  distin- 
guished Senator  from  Ohio  that  in  the  absence  of  Congressional  rules 
the  President  is  Commander  in  Chief.  Congress  having  raised  and  ap- 
propriated money  for  the  support  of  an  army,  but  having  failed  to  make 
rules  for  its  government  would,  ex  necessitate  rei,  have  the  power  to 
make  those  necessary  for  the  government  of  the  Army  and  Navy.  That 
would  not  be  simply  because  of  necessity,  I  think,  but  because  the  Con- 
stitution has  made  the  President  Commander  in  Chief  without  defining 
the  functions.  This  involves  the  power  to  do  those  things  which  inhere 
in  the  office  or  are  necessary  to  the  discharge  of  the  duties  of  the  office. 

The  Constitution  is  to  be  read  as  a  whole,  and  provisions  pari  materia 
are  to  be  read  together,  each  in  the  light  of  the  other.  No  clause  in  the 
Constitution  is  to  be  so  construed  as  to  destroy  another  clause  or  clauses. 

Now,  I  admit  the  power  of  Congress  over  the  subject  of  enlistment. 
I  admit  Congress  may  say  properly  that  no  enlisted  man  shall  be  dis- 
charged before  the  expiration  of  his  term  of  enlistment  except  upon  the 
finding  of  a  board  of  officers.  I  admit  that  the  Congress  may  provide 
that  no  man  shall  be  reenlisted  unless  his  service  during  the  preceding 
term  was  honest  and  faithful.  This  is  one  of  the  "rules"  made  by  Con- 
gress now  in  force.  I  admit  that  Congress  might  provide  —  it  would 
not  —  that  men  who  shall  have  been  dishonorably  discharged  by  sen- 
tence of  court-martial  may  be  reenlisted  in  the  Army  of  the  United 
States  upon  making  satisfactory  proof  to  a  board  or  complying  with 
such  other  terms  as  the  Congress  might  provide  as  showing  changed 
behavior. 

But  there  must  be  a  distinction  between  the  words  "  Congress  may 
make  rides  for  the  government  and  regulation  of  the  land  and  naval 
forces  "and  the  words  "Congress  shall  govern  the  land  and  naval 
forces."  The  one  would  make  the  power  to  govern  absolute ;  the  other 
is  restrictive  as  to  the  manner  in  which  the  governmental  power  of  Con- 
gress shall  be  exercised.  I  repeat  on  the  point  a  few  sentences  already 
read,  which  certainly  declare  the  law. 

It  is  true  that  the  Constitution  has  conferred  upon  Congress  the  exclusive 
power  "to  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces  " ;  that  the  two  powers  are  distinct;  neither  can  trench  upon  the  other; 
the  President  can  not,  under  the  disguise  of  military  orders,  evade  the  legislative 
regulations  by  which  he  in  common  with  the  Army  must  be  governed,  and 
Congress  can  not  in  the  disguise  of  "rules  for  the  government"  of  the  Army 
impair  the  authority  of  the  President  as  Commander  in  Chief.  (28  Court  of 
Claims,  221.) 

Mr.  FORAKER.     Will  the  Senator  give  the  citation  ? 

Mr.  SPOONER.     It  is  28  Court  of  Claims,  the  Swaim  case,  page  221. 


30  AMERICAN   FEDERAL   GOVERNMENT 

In  that  case  it  was  held,  and  affirmed  by  the  Supreme  Court,  that  the 
President  by  virtue  of  his  function  as  Commander  in  Chief  may  order 
a  general  court-martial. 

Now,  Mr.  President,  is  there  no  function  that  is  not  subject  to  the 
control  of  Congress  involved  in  the  designation  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States?  I  have  never  heard  it 
denied  until  yesterday  that  the  assignment  of  officers  to  particular  com- 
mands and  the  disposition  of  troops'  throughout  the  country  was  not  a 
part  of  the  power  of  command,  and  I  was  amazed  that  a  lawyer  of  the 
great  ability  of  my  friend  from  Georgia  should  suggest  —  I  do  not  know 
that  he  would  contend  for  it  —  that  Congress  can  provide  that  a  par- 
ticular officer  shall  be  assigned  to  a  particular  troop  or  that  where  a 
regiment  or  a  company  has  been  assigned  by  the  Commander  in  Chief 
to  a  particular  State  Congress  can  by  resolution,  which  has  the  effect 
of  law,  countermand  that  order.  If  that  is  correct,  it  may  fix  the  designa- 
tion or  location  to  which  that  command  shall  be  transferred.  I  never 
heard  it  suggested  before,  Mr.  President,  that  as  commander  of  the 
Army  and  Navy  the  President  had  not  the  power  to  send  the  war  ships 
hither  and  yon  as  in  his  judgment  is  best  for  the  country  and  the  people. 

The  President,  as  Commander  in  Chief,  acting  through  the  Secre- 
tary of  War,  having  lawfully  assigned  a  colored  battalion  or  a  colored 
regiment  to  Texas  for  duty,  Congress  could  not  constitutionally  pass 
a  resolution  revoking  that  order,  or,  if  it  had  been  executed,  requiring 
the  President  to  transfer  those  troops  from  Texas  to  some  other  State. 
If  the  intense  construction  which  the  Senator  from  Georgia  puts  upon 
the  word  " government"  in  this  clause  is  the  law,  the  Constitution  did 
not  constitute  the  President  Commander  in  Chief  of  the  Army  and 
Navy,  but  constituted  him  the  Adjutant-General  of  the  Congress,  and 
gave  him  no  power  to  issue  a  military  order  in  time  of  peace  not  revo- 
cable and  supplantable  by  a  joint  resolution  of  Congress. 

Pomeroy  says  of  the  powers  of  the  Commander  in  Chief,  inter  alia, 
on  page  472: 

The  President's  duties  in  respect  to  these  various  subjects  may  thus  be  clearly 
defined  and  controlled  by  the  legislature — 

Indicating  matters  of  Congressional  jurisdiction  with  which  I  agree  — 

But  in  time  of  peace  he  has  an  independent  function.  He  commands  the 
Army  and  Navy ;  Congress  does  not.  He  may  make  all  dispositions  of  troops 
and  officers,  stationing  them  now  at  this  post,  now  at  that;  he  may  send  out 
naval  vessels  to  such  parts  of  the  world  as  he  pleases;  he  may  distribute  the 
arms,  ammunition,  and  supplies  in  such  quantities  and  at  such  arsenals  and 
depositories  as  he  deems  best.  All  this  is  a  work  of  ordinary  routine  in  time  of 
peace,  and  is  probably  left,  in  fact,  to  the  Secretaries  of  War  and  of  the  Navy  and 
to  military  officers  high  in  command. 


POWERS    OF   THE   EXECUTIVE  31 

The  inevitable  effect  of  the  construction  contended  for  by  the  Senator 
must  lead  to  its  rejection.  If  the  power  of  Congress  over  the  Army  and 
over  the  Commander  in  Chief  of  the  Army  is  as  broad  as  he  suggests, 
there  is  no  order  in  time  of  peace  which  the  President  can  make  himself 
or  through  the  Secretary  of  War  which  can  not  be  countermanded  or 
set  aside  by  an  act  of  Congress  dealing  solely  with  that  order.  If  the 
Commander  in  Chief  makes  a  lawful  order  discharging  A.  B.  from  the 
Army  for  the  good  of  the  service,  he  or  some  friend  appeals  to  a  Senator 
or  Member  of  Congress  to  introduce  and  work  for  the  passage  of  a  joint 
resolution  restoring  A.  B.  to  the  army,  or,  in  effect,  revoking  the  order 
of  the  Commander  in  Chief.  It  would  be  contended  that  a  stigma  had 
been  put  unjustly  upon  this  man;  that  he  had  been  discharged  from 
the  Army  without  a  hearing ;  that  he  had  been  denied  the  right,  which 
all  men  should  have,  to  a  "day  in  court."  There  would  be  no  limit  to 
the  cases  in  which  Congress  would  be  asked  to  sit  as  a  court  of  appeals 
for  the  review  of  errors  committed  by  the  Commander  in  Chief  in  in- 
dividual cases  and  to  set  them  aside.  All  through  the  Army  the  Congress, 
not  the  Commander  in  Chief,  would  be  the  ultimate  power  in  the  minds 
of  enlisted  men,  and  if  anything  can  be  imagined  which  would  be  de- 
structive of  discipline  in  the  Army  it  would  be  such  a  system.  Does  the 
Senator  think  that  an  order  lawfully  made  by  the  Commander  in  Chief, 
discharging  without  honor  A.  B.  could  be  revoked  by  the  Congress. 

Mr.  BACON.  I  do  not  want  to  interrupt  the  Senator;  I  did  not  ex- 
pect to  take  any  part  in  this  debate;  I  am  agreeing  with  the  Senator 
upon  the  conclusion  he  reaches ;  but  I  am  simply  differing  from  him  as 
to  the  particular  road  over  which  he  travels  to  reach  it.  But  as  the 
Senator  directs  himself  to  me  so  pointedly  in  the  inquiry  he  has  just 
propounded,  without  undertaking  to  go  into  any  general  discussion  of 
the  matter  —  which  I  am  sure  he  recognizes  would  be  improper  and 
which  I  would  not  desire  to  do  at  this  time  —  I  simply  call  his  attention, 
in  response  to  the  inquiry  directly  addressed  to  me  by  the  Senator  him- 
self, to  the  fact  that  I  presume  he  has  in  innumerable  instances  voted 
to  correct  the  military  record  of  soldiers  who  have  been  convicted  by 
courts-martial  of  desertion. 

Mr.  SPOONER.     Yes. 

Mr.  BACON.  And  correcting  their  record  by  name,  legislating  directly 
upon  the  point. 

Mr.  SPOONER.     Yes. 

Mr.  BACON.  Of  course,  the  Senator  will  excuse  me  from  elaborating 
or  answering  at  large ;  but  I  simply  suggest  the  possibility  that  that  may 
be  a  reply  to  the  inquiry  propounded  to  me  by  the  Senator. 

Mr.  SPOONER.  Well,  Mr.  President,  there  can  be  no  question  but 
that  would  not  be  a  ride  for  the  regulation  and  government  of  the  Army. 

Mr.  BACON.  No;  but,  as  I  understood  the  Senator,  his  inquiry  was 
addressed  to  the  point  whether  or  not  Congress  could  legislate  as  to  the 


32  AMERICAN   FEDERAL   GOVERNMENT 

particular  individual,  regarding  anything  which  had  been  done  by  the 
direct  order  of  the  President.  An  order  of  a  court-martial  is  under 
the  authority  of  the  President;  and  when  a  man  is  discharged  by  the 
judgment  of  a  court-martial,  he  is  practically  discharged  by  order  of 
the  President.  The  inquiry  of  the  Senator  was,  whether  or  not  Congress 
could  by  legislation  directly  overturn  the  order  of  the  President  dismiss- 
ing a  man.  It  can  overturn  the  order  of  a  court-martial  and  restore  a 
man  to  the  rolls  with  honor,  and  make  him  eligible  to  draw  a  pension. 
It  seems  to  me  that  that  probably  would  be  a  case  such  as  the  Senator 
suggests. 

Mr.  SPOONER.  No,  Mr.  President.  There  are  a  great  many  cases, 
thousands  of  them,  cases  that  occurred  during  the  war,  cases  as  to 
officers  and  cases  as  to  enlisted  men,  having  nothing  whatever  to  do  with 
the  current  discipline  of  the  Army,  cases  in  which,  during  the  excitement 
and  the  haste  and  the  tumult  of  war,  injustice  has  been  done  to  soldiers, 
dishonorable  discharges  and  dismissals  from  the  Army  by  the  President, 
and  all  that,  in  which  Congress  has  afforded  relief.  But  Congress  has 
never  passed  an  act  upon  the  theory  that  it  restored  those  men  to  the 
Army;  that  it  made  void  the  act  of  the  President  or  the  act  of  the 
court-martial. 


GROVER   CLEVELAND,   THE   GOVERNMENT   IN   THE 
CHICAGO    STRIKE   OF    1894  l 

[One  of  the  acts  of  the  federal  executive  which  aroused  the  greatest  amount 
of  discussion  was  President  Cleveland's  use  of  the  military  forces  in  the  sup- 
pression of  the  Chicago  strike  of  1894.  The  action  of  the  President  in  this 
matter  was  carried  out  under  his  constitutional  power  "to  take  care  that  the 
laws  be  faithfully  executed."  The  interference  of  the  federal  government  rested 
upon  the  necessity  of  protecting  the  mail  service.  The  bringing  of  federal 
troops  into  a  commonwealth  for  this  purpose  aroused  strong  opposition  as  it 
was  claimed  that  the  state  should  have  been  allowed  singly  to  deal  with  the 
disturbance.  All  phases  of  this  most  interesting  action  and  controversy  are 
brought  out  in  the  account  subsequently  written  by  President  Cleveland,  the 
most  important  parts  of  which  are  here  reproduced.] 


President  inaugurated  on  the  4th  day  of  March,  1893,  and  those 
associated  with  him  as  cabinet  officials,  encountered,  during  their  term 
of  executive  duty,  unusual  and  especially  perplexing  difficulties.  The 
members  of  that  administration  who  still  survive,  in  recalling  the  events 
of  this  laborious  service,  can  not  fail  to  fix  upon  the  year  1894  as  the 
most  troublous  and  anxious  of  their  incumbency.  During  that  year  un- 
happy currency  complications  compelled  executive  resort  to  heroic 

1  McClure's  Magazine  (July,  1904),  23  :  227.    Reproduced  in  part,  with  permission. 
Copyright  1904,  by  the  S.  S.  McClure  Co. 


POWERS    OF   THE   EXECUTIVE  33 

treatment  for  the  preservation  of  our  nation's  financial  integrity,  and 
forced  upon  the  administration  a  constant,  unrelenting  struggle  for 
sound  money;  a  long  and  persistent  executive  effort  to  accomplish 
beneficent  and  satisfactory  tariff  reform  so  nearly  miscarried  as  to  bring 
depression  and  disappointment  to  the  verge  of  discouragement;  and  it 
was  at  the  close  of  the  year  1894  that  executive  insistence  upon  the 
Monroe  Doctrine  culminated  in  a  situation  that  gave  birth  to  solemn 
thoughts  of  war.  Without  attempting  to  complete  the  list  of  troubles 
and  embarrassments  that  beset  the  administration  during  this  luckless 
year,  I  have  reserved  for  separate  and  more  detailed  treatment  one  of  its 
incidents  not  yet  mentioned,  which  immensely  increased  executive  anx- 
iety and  foreboded  the  most  calamitous  and  far-reaching  consequences. 

In  the  last  days  of  June,  1894,  a  very  determined  and  ugly  labor  dis- 
turbance broke  out  in  the  City  of  Chicago.  Almost  in  a  night  it  grew 
to  full  proportions  of  malevolence  and  danger.  Rioting  and  violence 
were  its  early  accompaniments ;  and  it  spread  so  swiftly  that  within  a 
few  days  it  had  reached  nearly  the  entire  Western  and  Southwestern  sec- 
tions of  our  country.  Railroad  transportation  was  especially  involved 
in  its  attacks.  The  carriage  of  United  States  mails  was  interrupted, 
interstate  commerce  was  obstructed,  and  railroad  property  was  riotously 
destroyed. 

This  disturbance  is  often  called  "The  Chicago  Strike."  It  is  true 
that  its  beginning  was  in  that  city;  and  the  headquarters  of  those  who 
inaugurated  it  and  directed  its  operations  were  located  there;  but  the 
name  thus  given  to  it  is  an  entire  misnomer  so  far  as  it  applies  to  the 
scope  and  reach  of  the  trouble.  Railroad  operations  were  more  or  less 
affected  in  twenty-seven  states  and  territories;  and  in  all  these  the  in- 
terposition of  the  General  Government  was  to  a  greater  or  less  extent 
invoked. 

This  widespread  trouble  had  its  inception  in  a  strike  by  the  em- 
ployees of  the  Pullman  Palace  Car  Company,  a  corporation  located 
and  doing  business  at  the  town  of  Pullman,  which  is  within  the  limits 
of  the  City  of  Chicago.  This  company  was  a  manufacturing  corpora- 
tion —  or  at  least  it  was  not  a  railroad  corporation.  Its  main  object 
was  the  operation  and  running  of  sleeping  and  parlor  cars  upon  rail- 
roads under  written  contracts;  but  its  charter  contemplated  the  manu- 
facture of  cars  as  well;  and  soon  after  its  incorporation  it  began  the 
manufacture  of  its  own  cars  and,  subsequently,  the  manufacture  of 
cars  for  the  general  market. 

The  strike  on  the  part  of  the  employees  of  this  company  began  on  the 
nth  day  of  May,  1894,  and  was  provoked  by  a  reduction  of  wages. 


This  strike  led  to  a  general  strike  declared  by  the  American  Railway  Union, 
and  commencing  June  26,  1894. 

3 


34  AMERICAN   FEDERAL   GOVERNMENT 

The  officers  of  the  Railroad  Union  from  their  headquarters  in  the 
City  of  Chicago  gave  directions  for  the  maintenance  and  management 
of  the  strike,  which  were  quickly  transmitted  to  distant  railroad  points 
and  were  there  promptly  executed.  As  early  as  the  28th  of  June,  two 
days  after  the  beginning  of  the  strike  ordered  by  the  Railway  Union 
at  Chicago,  information  was  received  at  Washington  from  the  Post- 
Office  Department  that  on  the  Southern  Pacific  System,  between  Port- 
land and  San  Francisco,  Ogden  and  San  Francisco,  and  Los  Angeles 
and  San  Francisco,  the  mails  were  completely  obstructed,  and  that  the 
strikers  refused  to  permit  trains  to  which  Pullman  cars  were  attached 
to  run  over  the  lines  mentioned.  Thereupon  Attorney- General  Olney 
immediately  sent  the  following  telegraphic  despatch  to  the  United  States 
district  attorneys  in  the  State  of  California: 

WASHINGTON,  D.  C.,  June  28,  1894. 

"See  that  the  passage  of  regular  trains,  carrying  United  States  mails  in  the 
usual  and  ordinary  way,  as  contemplated  by  the  Act  of  Congress  and  directed 
by  the  Postmaster- General,  is  not  obstructed.  Procure  warrants  or  any  other 
available  process  from  United  States  courts  against  any  and  all  persons  engaged 
in  such  obstructions  and  direct  the  Marshal  to  execute  the  same  by  such 
number  of  deputies  or  such  posse  as  may  be  necessary." 

On  the  same  day,  and  during  a  number  of  days  immediately  follow- 
ing, complaints  of  a  similar  character,  sometimes  accompanied  by  charges 
of  forcible  seizure  of  trains  and  other  violent  disorders,  poured  in  upon 
the  Attorney- General  from  all  parts  of  the  West  and  Southwest.  These 
complaints  came  from  post-office  officials,  from  United  States  marshals 
and  district  attorneys,  from  railroad  managers,  and  from  other  officials 
and  private  citizens.  In  all  cases  of  substantial  representation  of  inter- 
ference with  the  carriage  of  mails,  a  despatch  identical  with  that  already 
quoted  was  sent  by  the  Attorney- General  to  the  United  States  district 
attorneys  in  the  disturbed  localities ;  and  this  was  supplemented,  when- 
ever necessary,  by  such  other  prompt  action  as  the  different  emergencies 
required. 

I  shall  not  enter  upon  an  enumeration  of  all  the  disorders  and  violence, 
the  defiance  of  law  and  authority,  and  the  obstructions  of  national  func- 
tions and  duties,  which  occurred  in  many  localities  as  a  consequence  of 
this  labor  contention,  thus  tremendously  reinforced  and  completely  under 
way.  It  is  my  especial  purpose  to  review  the  action  taken  by  the  Gov- 
ernment for  the  maintenance  of  its  own  authority  and  the  protection 
of  the  special  interests  intrusted  to  its  keeping,  so  far  as  they  were  en- 
dangered by  this  disturbance;  and  I  do  not  intend  to  especially  deal 
with  the  incidents  of  the  strike  except  in  so  far  as  a  reference  to  them 
may  be  necessary  to  show  conditions  which  not  only  justified  but  act- 
ually obliged  the  Government  to  resort  to  stern  and  unusual  measures 
in  the  assertion  of  its  prerogatives. 


POWERS    OF   THE   EXECUTIVE  35 

Inasmuch,  therefore,  as  the  City  of  Chicago  was  the  birthplace  of  the 
disturbance  and  the  home  of  its  activities ;  and  because  it  was  the  field 
of  its  most  pronounced  and  malign  manifestations,  as  well  as  the  place 
of  its  final  extinction,  I  shall  meet  the  needs  of  my  subject  by  supple- 
menting what  has  been  already  said,  by  a  recital  of  events  occurring 
at  this  central  point.  In  doing  this,  I  shall  liberally  embody  documents, 
orders,  instructions,  and  reports  which  I  hope  will  not  prove  tiresome, 
since  they  supply  the  facts  I  desire  to  present,  at  first  hand  and  more 
impressively  than  they  could  be  presented  by  any  words  of  mine. 

Owing  to  the  enforced  relationship  of  Chicago  to  the  strike  which 
started  within  its  borders,  and  because  of  its  importance  as  a  center  of 
railway  traffic,  Government  officials  at  Washington  were  not  surprised 
by  the  early  and  persistent  complaints  of  mail  and  interstate  commerce 
obstructions  which  reached  them  from  that  city.  It  was  from  the  first 
anticipated  that  this  would  be  the  seat  of  the  most  serious  complications, 
and  the  place  where  the  strong  arm  of  the  law  would  be  most  needed. 
In  these  circumstances  it  would  have  been  a  criminal  neglect  of  duty  if 
those  charged  with  the  protection  of  Governmental  agencies  and  the 
enforcement  of  orderly  obedience  and  submission  to  Federal  authority, 
had  been  remiss  in  preparations  for  any  emergency  in  that  quarter. 

On  the  3<Dth  of  June  the  District  Attorney  of  Chicago  reported  by 
telegraph  that  mail  trains  in  the  suburbs  of  Chicago  were,  on  the  previous 
night,  stopped  by  strikers,  that  an  engine  had  been  cut  off  and  disabled, 
and  that  conditions  were  growing  more  and  more  likely  to  culminate  in 
the  stoppage  of  all  trains;  and  he  recommended  that  the  Marshal  be 
authorized  to  employ  a  force  of  special  deputies  who  should  be  placed 
on  trains  to  protect  mails  and  detect  the  parties  guilty  of  such  interfer- 
ence. In  reply  to  this  despatch  Attorney-General  Olney  on  the  same 
day  authorized  the  Marshal  to  employ  additional  deputies  as  suggested, 
and  designated  Edwin  Walker,  an  able  and  prominent  attorney  in 
Chicago,  as  special  counsel  for  the  Government,  to  assist  the  District 
Attorney  in  any  legal  proceedings  that  might  be  instituted.  He  also 
notified  the  District  Attorney  of  this  action,  and  enjoined  upon  him  that 
"  action  ought  to  be  prompt  and  vigorous,"  and  directed  him  to  confer 
with  the  special  counsel  who  had  been  employed.  In  a  letter  of  the  same 
date  addressed  to  this  special  counsel,  the  Attorney-General,  in  making 
suggestions  concerning  legal  proceedings,  wrote:  "It  has  seemed  to 
me  that  if  the  rights  of  the  United  States  were  vigorously  asserted  in 
Chicago,  the  origin  and  center  of  the  demonstration,  the  result  would  be 
to  make  it  a  failure  everywhere  else,  and  to  prevent  its  spread  over  the 
entire  country,"  and  in  that  connection  he  indicated  that  it  might  be 
advisable,  instead  of  relying  entirely  upon  warrants  issued  under  criminal 
statutes,  against  persons  actually  guilty  of  the  offense  of  obstructing 
United  States  mails,  that  the  courts  should  be  asked  to  grant  injunctions 
which  would  restrain  and  prevent  any  attempt  to  commit  such  offense. 


36  AMERICAN   FEDERAL   GOVERNMENT 

This  suggestion  contemplated  the  inauguration  of  legal  proceedings  in 
a  regular  and  usual  way  to  restrain  those  prominently  concerned  in  the 
interference  with  the  mails  and  the  obstruction  of  interstate  commerce, 
basing  such  proceedings  on  the  proposition  that,  under  the  constitution 
and  laws,  these  subjects  were  in  the  exclusive  care  of  the  Government 
of  the  United  States,  and  that  for  their  protection  the  Federal  courts 
were  competent  under  general  principles  of  law  to  intervene  by  injunc- 
tion ;  and  on  the  further  ground  that  under  an  Act  of  Congress,  passed 
July  2,  1890,  conspiracies  in  restraint  of  trade  or  commerce  among  the 
several  states  were  declared  to  be  illegal,  and  the  Circuit  Courts  of  the 
United  States  were  therein  expressly  given  jurisdiction  to  prevent  and 
restrain  such  conspiracies. 

On  the  ist  day  of  July  the  District  Attorney  reported  to  the  Attorney- 
General  that  he  was  preparing  a  bill  of  complaint  to  be  presented  to  the 
court  the  next  day,  on  an  application  for  an  injunction.  He  further  re- 
ported that  very  little  mail  and  no  freight  was  moving,  that  the  Marshal 
was  using  all  his  force  to  prevent  riots  and  the  obstruction  of  tracks,  and 
that  this  force  was  clearly  inadequate.  On  the  same  day  the  Marshal 
reported  that  the  situation  was  desperate,  that  he  had  sworn  in  over 
400  deputies,  that  many  more  would  be  required  to  protect  mail  trains, 
and  that  he  expected  great  trouble  the  next  day.  He  further  expressed 
the  opinion  that  100  riot  guns  were  needed. 

Upon  the  receipt  of  these  reports,  and  anticipating  an  attempt  to 
serve  injunctions  on  the  following  day,  the  Attorney-General  imme- 
diately sent  a  despatch  to  the  District  Attorney  directing  him  to  report 
at  once  if  the  process  of  the  court  should  be  resisted  by  such  force  as 
the  Marshal  could  not  overcome,  and  suggesting  that  the  United  States 
judge  should  join  in  such  report.  He  at  the  same  time  sent  a  despatch 
to  the  special  counsel  requesting  him  to  report  his  view  of  the  situation 
as  early  as  the  forenoon  of  the  next  day. 

In  explanation  of  these  two  despatches  it  should  here  be  said  that 
the  desperate  character  of  this  disturbance  was  not  in  the  least  under- 
estimated by  executive  officials  at  Washington;  and  it  must  be  borne 
in  mind  that  while  menacing  conditions  were  moving  swiftly  and  accu- 
mulating at  Chicago,  like  conditions,  inspired  and  supported  from  that 
central  point,  existed  in  many  other  places  within  the  area  of  the  strike's 
contagion. 

Of  course  it  was  hoped  by  those  charged  with  the  responsibility  of 
dealing  with  the  situation,  that  a  direct  assertion  of  authority  by  the 
Marshal  and  a  resort  to  the  restraining  power  of  the  courts  would  prove 
sufficient  for  the  emergency.  Notwithstanding,  however,  an  anxious 
desire  to  avoid  measures  more  radical,  the  fact  had  not  been  overlooked 
that  a  contingency  might  occur  which  would  compel  a  resort  to  military 
force.  The  key  to  these  despatches  of  the  Attorney-General  is  found 
in  the  determination  of  the  Federal  authorities  to  overcome  by  any  law- 


POWERS    OF   THE   EXECUTIVE  37 

ful  and  constitutional  means  all  resistance  to  governmental  functions 
as  related  to  the  transportation  of  mails,  the  operation  of  interstate 
commerce,  and  the  preservation  of  the  property  of  the  United  States. 

The  constitution  requires  that  the  United  States  shall  protect  each 
of  the  states  against  invasion,  "and  on  application  of  the  legislature, 
or  of  the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence."  There  was  plenty  of  domestic  violence  in  the  City 
of  Chicago  and  in  the  State  of  Illinois  during  the  early  days  of  July, 
1894;  but  no  application  was  made  to  the  Federal  Government  for  as- 
sistance. It  was  probably  a  very  fortunate  circumstance  that  the  pres- 
ence of  United  States  soldiers  in  Chicago  at  that  time  did  not  depend 
upon  the  request  or  desire  of  Governor  Altgeld. 

Section  5,298  of  the  Revised  Statutes  of  the  United  States  provides 
that:  "Whenever,  by  reason  of  unlawful  obstructions,  combinations  or 
assemblages  of  persons,  or  rebellion  against  the  authority  of  the  United 
States,  it  shall  become  impracticable  in  the  judgment  of  the  President 
to  enforce  by  the  ordinary  course  of  judicial  proceedings,  the  laws  of 
the  United  States  within  any  State  or  Territory,  it  shall  be  lawful  for  the 
President  to  call  forth  the  militia  of  any  or  all  of  the  States,  and  to  em- 
ploy such  parts  of  the  land  or  naval  forces  of  the  United  States  as  he 
may  deem  necessary  to  enforce  the  faithful  execution  of  the  laws  of  the 
United  States,  or  to  suppress  such  rebellion,  in  whatever  State  or  Terri- 
tory thereof  the  laws  of  the  United  States  may  be  forcibly  opposed,  or 
the  execution  thereof  be  forcibly  obstructed;"  and  Section  5,299  pro- 
vides that:  "Whenever  any  insurrection,  domestic  violence,  unlawful 
combinations  or  conspiracies  in  any  State  .  .  .  opposes  or  obstructs 
the  laws  of  the  United  States,  or  the  due  execution  thereof,  or  impedes 
or  obstructs  the  due  course  of  justice  under  the  same,  it  shall  be  lawful 
for  the  President  and  it  shall  be  his  duty,  to  take  such  measures 
by  the  employment  of  the  militia,  or  the  land  and  naval  forces  of  the 
United  States,  or  of  either,  or  by  other  means  as  he  may  deem  nec- 
essary, for  the  suppression  of  such  insurrection,  domestic  violence  or 
combinations." 

It  was  the  intention  of  the  Attorney-General  to  suggest  in  these  de- 
spatches that  immediate  and  authoritative  information  should  be  given 
to  the  Washington  authorities  if  a  time  should  arrive  when,  under  the 
sanction  of  general  executive  authority,  or  the  constitutional  and  statu- 
tory provisions  above  quoted,  a  military  force  would  be  necessary  at  the 
scene  of  disturbance. 

On  the  2d  of  July,  the  day  after  these  despatches  were  sent,  informa- 
tion was  received  from  the  District  Attorney  and  special  counsel  that  a 
sweeping  injunction  had  been  granted  against  Eugene  V.  Debs,  presi- 
dent of  the  American  Railway  Union,  and  other  officials  of  the  organiza- 
tion, together  with  parties  whose  names  were  unknown,  and  that  the 
writs  would  be  served  that  afternoon.  The  special  counsel  also  ex- 


38  AMERICAN   FEDERAL   GOVERNMENT 

pressed  the  opinion  that  it  would  require  Government  troops  to  enforce 
the  orders  of  the  court  and  protect  the  transportation  of  mails. 

Major-General  Schofield  was  then  in  command  of  the  army;  and, 
after  a  consultation  with  him,  in  which  the  Attorney-General  and  the 
Secretary  of  War  took  part,  I  directed  the  issuance  of  the  following 
order  by  telegraph  to  General  Nelson  A.  Miles,  in  command  of  the 
Military  Department  of  Missouri,  with  headquarters  at  Chicago: 

HEADQUARTERS  OF  THE  ARMY, 

To  the  Commanding  General,  WASHINGTON,  July  2,  1904. 

Department  of  Missouri,  Chicago,  111. 

You  will  please  make  all  necessary  arrangements  confidentially  for  the 
transportation  of  the  entire  garrison  at  Fort  Sheridan —  infantry,  cavalry  and 
artillery —  to  the  Lake  Front  in  the  City  of  Chicago.  To  avoid  possible  inter- 
ruption of  the  movement  by  rail  and  by  marching  through  a  part  of  the  city, 
it  may  be  advisable  to  bring  them  by  steamboat.  Please  consider  this  matter 
and  have  the  arrangements  perfected  without  delay.  You  may  expect  orders 
at  any  time  for  the  movement.  Acknowledge  receipt  and  report  in  what  manner 
movement  is  to  be  made. 

J.  M.  SCHOFIELD,  Major-General  Commanding. 

It  should  by  no  means  be  inferred  from  this  despatch  that  it  had  been 
definitely  determined  that  the  use  of  a  military  force  was  inevitable.  It 
was  still  hoped  that  the  effect  of  the  injunction  would  be  such  that  such 
an  alternative  might  be  avoided.  A  painful  emergency  is  created  when 
public  duty  forces  the  necessity  of  placing  trained  soldiers  face  to  face 
with  riotous  opposition  to  the  General  Government,  and  in  opposition 
to  an  acute  and  determined  resistance  to  law  and  order.  This  course, 
once  entered  upon,  admits  of  no  backward  step;  and  an  appreciation 
of  the  consequences  that  may  ensue  cannot  fail  to  oppress  those  re- 
sponsible for  its  adoption  with  sadly  disturbing  reflections.  Neverthe- 
less, it  was  perfectly  plain  that,  whatever  the  outcome  might  be,  the 
situation  positively  demanded  such  precaution  and  preparation  as  would 
insure  readiness  and  promptness,  in  case  the  presence  of  a  military 
force  should  finally  be  found  necessary. 

On  the  morning  of  the  next  day,  July  3d,  the  Attorney-General  re- 
ceived a  letter  from  Mr.  Walker,  the  special  counsel,  in  which,  after 
referring  to  the  issuance  of  the  injunctions  and  setting  forth  that  the 
Marshal  was  engaged  in  serving  them,  he  wrote:  "I  do  not  believe  that 
the  Marshal  and  his  deputies  can  protect  the  railroad  companies  in 
moving  their  trains,  either  freight  or  passenger,  including  of  course  the 
trains  carrying  United  States  mails.  Possibly,  however,  the  service  of 
the  writ  of  injunction  will  have  a  restraining  influence  upon  Debs  and 
other  officers  of  the  association.  If  it  does  not,  from  present  appear- 
ances, I  think  it  is  the  opinion  of  all  that  the  orders  of  the  court  cannot 
be  enforced  except  by  the  aid  of  the  Regular  Army." 


POWERS    OF   THE   EXECUTIVE  39 

Thereupon  the  Attorney-General  immediately  sent  this  despatch  to 
the  District  Attorney: 

I  trust  use  of  United  States  troops  will  not  be  necessary.  If  it  becomes 
necessary,  they  will  be  used  promptly  and  decisively  upon  the  justifying  facts 
being  certified  to  me.  In  such  case,  if  practicable,  let  Walker  and  the  Marshal 
and  United  States  judge  join  in  statement  as  to  the  exigency. 

A  few  hours  afterwards  the  following  urgent  and  decisive  despatch 
from  the  Marshal,  endorsed  by  a  judge  of  the  United  States  court  and 
the  District  Attorney,  and  special  counsel,  was  received  by  the  Attorney- 
General  : 

CHICAGO,  ILL  ,  July  3,  1894. 
HON.  RICHARD  OLNEY,  Attorney-General,  Washington,  D.  C. 

When  the  injunction  was  granted  yesterday,  a  mob  of  from  two  to  three  thou- 
sand held  possession  of  a  point  in  the  city  near  the  crossing  of  the  Rock  Island 
by  other  roads,  where  they  had  already  ditched  a  mail  train,  and  prevented  the 
passing  of  any  trains,  whether  mail  or  otherwise.  I  read  the  injunction  writ  to 
this  mob  and  commanded  them  to  disperse.  The  reading  of  the  writ  met  with 
no  response  except  jeers  and  hoots.  Shortly  after,  the  mob  threw  a  number  of 
baggage  cars  across  the  track,  since  when  no  mail  train  has  been  able  to  move. 
I  am  unable  to  disperse  the  mob,  clear  the  tracks,  or  arrest  the  men  who  were 
engaged  in  the  acts  named,  and  believe  that  no  force  less  than  the  regular  troops 
of  the  United  States  can  procure  the  passage  of  the  mail  trains,  or  enforce  the 
orders  of  the  courts.  I  believe  people  engaged  in  trades  are  quitting  employ- 
ment to-day,  and  in  my  opinion  will  be  joining  the  mob  to-night  and  especially 
to-morrow ;  and  it  is  my  judgment  that  the  troops  should  be  here  at  the  earliest 
moment.  An  emergency  has  arisen  for  their  presence  in  this  city. 

J.  W.  ARNOLD,  United  States  Marshal. 

We  have  read  the  foregoing  and  from  that  information  and  other  information 
that  has  come  to  us,  believe  that  an  emergency  exists  for  the  immediate  presence 
of  United  States  troops.  p  s  GROSSCUP,  Judge. 

EDWIN  WALKER, 
THOMAS  E.  MILCHRIST,  Attys. 

In  the  afternoon  of  the  same  day  the  following  order  was  telegraphed 
from  Army  Headquarters  in  the  City  of  Washington : 

WAR  DEPARTMENT, 

HEADQUARTERS  OF  THE  ARMY, 

WASHINGTON,  D.  C.,  July  3,  1894. 

To  MARTIN,  Adjutant-General,  4  o 'Clock  P.  M. 

Headquarters  Department  of  Missouri,  Chicago,  111. 

It  having  become  impracticable  in  the  judgment  of  the  President  to  enforce 
by  the  ordinary  course  of  judicial  proceedings  the  laws  of  the  United  States,  you 
will  direct  Colonel  Crofton  to  move  his  entire  command  at  once  to  the  City  of 
Chicago  (leaving  the  necessary  guard  at  Fort  Sheridan),  there  to  execute  the 
orders  and  processes  of  the  United  States  court,  to  prevent  the  obstruction  of 
the  United  States  mails,  and  generally  to  enforce  the  faithful  execution  of  the 


40  AMERICAN  FEDERAL   GOVERNMENT 

laws  of  the  United  States.  He  will  confer  with  the  United  States  Marshal, 
the  United  States  District  Attorney,  and  Edwin  Walker,  special  counsel. 
Acknowledge  receipt  and  report  action  promptly.  By  order  of  the  President. 

J.  M.  SCHOFIELD,  Major -General. 

Immediately  after  this  order  was  issued,  the  following  despatch  was 
sent  to  the  District  Attorney  by  the  Attorney-General : 

"Colonel  Crofton's  command  ordered  to  Chicago  by  the  President.  As  to 
disposition  and  movement  of  troops,  yourself,  Walker,  and  Marshall  should 
confer  with  Colonel  Crofton  and  with  Colonel  Martin,  Adjutant-General  at 
Chicago.  While  action  should  be  prompt  and  decisive,  it  should  of  course  be 
kept  within  the  limits  provided  by  the  constitution  and  laws.  Rely  upon  your- 
self and  Walker  to  see  that  this  is  done." 

Colonel  Martin,  Adjutant- General  at  Chicago,  reported  the  same 
night  at  half-past  nine  o'clock  that  the  order  for  the  movement  of  troops 
was,  immediately  on  its  receipt  by  him,  transmitted  to  Fort  Sheridan, 
and  that  Colonel  Crofton's  command  started  for  Chicago  at  nine  o'clock. 

During  the  forenoon  of  the  next  day,  July  4th,  Colonel  Martin  ad- 
vised the  War  Department  that  Colonel  Crofton  reported  his  command 
in  the  City  of  Chicago  at  10.15  that  morning.  After  referring  to  the 
manner  in  which  the  troops  had  been  distributed,  this  officer  added: 
" People  seem  to  feel  easier  since  arrival  of  troops." 

General  Miles,  commanding  the  department,  arrived  in  Chicago  the 
same  morning,  and  at  once  assumed  direction  of  military  movements. 
In  the  afternoon  of  that  day  he  sent  a  report  to  the  War  Department 
at  Washington,  giving  an  account  of  the  disposition  of  troops,  recounting 
an  unfavorable  condition  of  affairs,  and  recommending  an  increase  of 
the  garrison  at  Fort  Sheridan  sufficient  to  meet  any  emergency. 

In  response  to  this  despatch  General  Miles  was  immediately  author- 
ized to  order  six  companies  of  infantry  from  Fort  Leavenworth,  in 
Kansas,  and  two  companies  from  Fort  Brady,  in  Michigan,  to  Fort 
Sheridan. 

On  the  5th  day  of  July  he  reported  that  a  mob  of  over  two  thousand 
had  gathered  that  morning  at  the  stock-yards,  crowded  among  the  troops, 
obstructed  the  movement  of  trains,  knocked  down  a  railroad  official, 
and  overturned  about  twenty  freight  cars,  which  obstructed  all  freight 
and  passenger  traffic  in  the  vicinity  of  the  stock-yards,  and  that  the  mob 
had  also  derailed  a  passenger  train  on  the  Pittsburg,  Fort  Wayne  and 
Chicago  Railroad  and  burned  switches.  To  this  recital  of  violent  dem- 
onstrations he  added  the  following  statement:  "The  injunction  of  the 
United  States  court  is  openly  defied,  and  unless  the  mobs  are  dispersed 
by  the  action  of  the  police  or  they  are  fired  upon  by  United  States  troops, 
more  serious  trouble  may  be  expected,  as  the  mob  is  increasing  and 
becoming  more  defiant." 


POWERS    OF   THE   EXECUTIVE  41 

In  view  of  the  situation  as  reported  by  General  Miles,  he  was  at  once 
directed  by  General  Schofield  to  concentrate  his  troops  in  order  that 
they  might  act  more  effectively  in  the  execution  of  orders  theretofore 
given,  and  in  the  protection  of  United  States  property.  This  despatch 
concluded  as  follows : 

"The  mere  preservation  of  peace  and  good  order  in  the  city  is,  of  course,  the 
province  of  the  city  and  state  authorities." 

The  situation  on  the  6th  day  of  July  was  thus  described  in  a  despatch 
sent  in  the  afternoon  of  that  day  by  General  Miles  to  the  Secretary  of 
War: 

"In  answer  to  your  telegram,  I  report  the  following:  Mayor  Hopkins  last 
night  issued  a  proclamation  prohibiting  riotous  assemblies  and  directing  the 
police  to  stop  people  from  molesting  railway  communication.  Governor 
Altgeld  has  ordered  General  Wheeler's  brigade  on  duty  in  Chicago  to  support 
the  Mayor's  authority.  So  far,  there  have  been  no  large  mobs  like  the  one  of 
yesterday  which  moved  from  5ist  Street  to  i8th  Street  before  it  dispersed.  The 
lawlessness  has  been  along  the  line  of  the  railways,  destroying  and  burning  more 
than  one  hundred  cars  and  railway  buildings,  and  obstructing  transportation  in 
various  ways,  even  to  the  extent  of  cutting  telegraph  lines.  United  States 
troops  have  dispersed  mobs  at  5ist  Street,  Kensington,  and  a  company  of  in- 
fantry is  moving  along  the  Rock  Island  to  support  a  body  of  United  States 
marshals  in  making  arrests  for  violating  the  injunction  of  the  United  States 
court.  Of  the  twenty-three  roads  centering  in  Chicago,  only  six  are  unob- 
structed in  freight,  passenger,  and  mail  transportation ;  thirteen  are  at  present 
entirely  obstructed,  and  ten  are  running  only  mail  and  passenger  trains. 
Large  numbers  of  trains  moving  in  and  out  of  the  city  have  been  stoned  and 
fired  upon  by  mobs,  and  one  engineer  killed.  There  was  a  secret  meeting  to-day 
of  Debs  and  the  representatives  of  labor  unions  considering  the  advisability  of 
a  general  strike  of  all  labor  unions.  About  one  hundred  men  were  present  at 
that  meeting.  The  result  is  not  yet  known.  United  States  troops  are  at  the 
stock-yards,  Kensington,  Blue  Island,  crossing  of  5ist  Street,  and  have  been 
moving  along  some  of  the  lines:  the  balance,  eight  companies  of  infantry, 
battery  of  artillery,  and  one  troop  of  cavalry,  are  camped  on  Lake  Front  Park, 
ready  for  any  emergency  and  to  protect  Government  buildings  and  property. 
It  is  learned  from  the  Fire  Department,  City  Hall,  that  a  party  of  strikers  has 
been  going  through  the  vicinity  from  i4th  to  4ist  Streets  and  Stewart  Avenue 
freight  yards,  throwing  gasoline  on  freight  cars  all  through  that  section.  Captain 
Ford,  of  the  Fire  Department,  was  badly  stoned  this  morning.  Troops  have 
just  dispersed  a  mob  of  incendiaries  on  Fort  Wayne  tracks,  near  5ist  Street,  and 
fires  that  were  started  have  been  suppressed.  Mob  just  captured  mail  train  at 
47th  Street  and  troops  sent  to  disperse  them." 

On  the  8th  day  of  July,  in  view  of  the  apparently  near  approach  of 
a  crisis  which  the  Government  had  attempted  to  avoid,  the  following 
Executive  Proclamation  was  issued  and  at  once  extensively  published 
in  the  City  of  Chicago: 


42  AMERICAN  FEDERAL   GOVERNMENT 

Whereas,  by  reason  of  unlawful  obstruction,  combinations  and  assemblages 
of  persons,  it  has  become  impracticable  in  the  judgment  of  the  President  to 
enforce  by  the  ordinary  course  of  judicial  proceedings,  the  laws  of  the  United 
States  within  the  State  of  Illinois,  and  especially  in  the  City  of  Chicago  within 
said  State;  and 

Whereas,  for  the  purpose  of  enforcing  the  faithful  execution  of  the  laws  of  the 
United  States  and  protecting  its  property  and  removing  obstructions  to  the 
United  States  mails  in  the  state  and  city  aforesaid,  the  President  has  employed  a 
part  of  the  military  forces  of  the  United  States:  — 

Now,  therefore,  I,  Grover  Cleveland,  President  of  the  United  States,  do 
hereby  admonish  all  good  citizens,  and  all  persons  who  may  be  or  may  come 
within  the  city  and  state  aforesaid,  against  aiding,  countenancing,  encouraging, 
or  taking  any  part  in  such  unlawful  obstructions,  combinations  and  assem- 
blages ;  and  I  hereby  warn  all  persons  engaged  in  or  in  any  way  connected  with 
such  unlawful  obstructions,  combinations  and  assemblages  to  disperse  and 
retire  peaceably  to  their  respective  abodes  on  or  before  twelve  o'clock,  noon,  of 
the  Qth  day  of  July  instant. 

Those  who  disregard  this  warning  and  persist  in  taking  part  with  a  riotous 
mob  in  forcibly  resisting  and  obstructing  the  execution  of  the  laws  of  the 
United  States  or  interfering  with  the  functions  of  the  Government,  or  destroying 
or  attempting  to  destroy  the  property  belonging  to  the  United  States  or  under 
its  protection,  cannot  be  regarded  otherwise  than  as  public  enemies. 

Troops  employed  against  such  a  riotous  mob  will  act  with  all  the  moderation 
and  forbearance  consistent  with  the  accomplishment  of  the  desired  end ;  but  the 
stern  necessities  that  confront  them  will  not  with  certainty  permit  discrimination 
between  guilty  participants  and  those  who  are  mingling  with  them  from  curiosity 
and  without  criminal  intent.  The  only  safe  course,  therefore,  for  those  not  actu- 
ally participating,  is  to  abide  at  their  homes,  or  at  least  not  to  be  found  in  the 
neighborhood  of  riotous  assemblages. 

While  there  will  be  no  vacillation  in  the  decisive  treatment  of  the  guilty,  this 
warning  is  especially  intended  to  protect  and  save  the  innocent. 

On  the  loth  of  July,  Eugene  V.  Debs,  the  president  of  the  American 
Railway  Union,  together  with  its  vice-president,  general  secretary,  and 
one  other  who  was  an  active  director,  were  arrested  upon  indictments 
found  against  them  for  complicity  in  the  obstruction  of  mails  and  inter- 
state commerce.  Three  days  afterwards  our  special  counsel  expressed 
the  opinion  that  the  strike  was  practically  broken.  This  must  not  be 
taken  to  mean,  however,  that  peace  and  quiet  had  been  completely  re- 
stored or  that  the  transportation  of  mails  and  the  activities  of  interstate 
commerce  were  entirely  free  from  interruption.  It  meant  only  the  ex- 
pression of  a  well  sustained  and  deliberate  expectation  that  the  combina- 
tion of  measures  already  inaugurated,  and  others  contemplated  in  the 
near  future,  would  speedily  bring  about  a  termination  of  the  difficulty. 

On  the  iyth  day  of  July  an  information  was  filed  in  the  United  States 
Circuit  Court  at  Chicago  against  Debs  and  the  three  other  officials  of 
the  Railway  Union  who  had  been  arrested  on  indictment  a  few  days 
before,  but  were  then  at  large  on  bail.  This  information  alleged  that 


POWERS    OF   THE   EXECUTIVE  43 

these  parties  had  been  guilty  of  open,  continued,  and  defiant  disobe- 
dience of  the  injunction  which  was  served  on  them  July  3d,  forbidding 
them  to  do  certain  specified  acts  tending  to  incite  and  aid  the  obstruc- 
tion of  the  carriage  of  mails  and  the  operation  of  interstate  commerce. 
On  the  footing  of  this  information  these  parties  were  brought  before  the 
court  to  show  cause  why  they  should  not  be  punished  for  contempt  in 
disobeying  the  injunction.  Instead  of  giving  bail  for  their  freedom 
pending  the  investigation  of  this  charge  against  them,  as  they  were  in- 
vited to  do,  they  preferred  to  be  committed  to  custody.  .  .  . 

That  the  strike  was  ended  about  the  time  of  this  second  arrest  is  un- 
doubtedly true;  for,  during  the  few  days  immediately  preceding  and 
following  the  iyth  day  of  July,  reports  came  from  nearly  all  the  locali- 
ties to  which  the  strike  had  spread,  indicating  its  defeat  and  the  accom- 
plishment of  all  the  purposes  of  the  Government's  interference. 

I  must  not  fail  to  mention  here  as  part  of  the  history  of  this  perplexing 
affair,  a  contribution  made  by  the  Governor  of  Illinois  to  its  annoyances. 

On  the, 5th  day  of  July,  twenty-four  hours  after  our  soldiers  had  been 
brought  to  the  City  of  Chicago,  pursuant  to  the  order  of  July  3d,  I  re- 
ceived a  long  despatch  from  Governor  Altgeld,  beginning  as  follows : 

"I  am  advised  that  you  have  ordered  Federal  troops  to  go  into  service  in  the 
State  of  Illinois.  Surely  the  facts  have  not  been  correctly  presented  to  you  in 
this  case  or  you  would  not  have  taken  the  step ;  for  it  is  entirely  unnecessary  and, 
as  it  seems  to  me,  unjustifiable.  Waiving  all  question  of  courtesy,  I  will  say 
that  the  State  of  Illinois  is  not  only  able  to  take  care  of  itself,  but  it  stands  ready 
to-day  to  furnish  the  Federal  Government  any  assistance  it  may  need  else- 
where." 

This  opening  sentence  was  followed  by  a  lengthy  statement  which  so 
far  missed  actual  conditions  as  to  appear  irrelevant  and,  in  some  parts, 
absolutely  frivolous. 

This  remarkable  despatch  closed  with  the  following  words : 

"As  Governor  of  the  State  of  Illinois,  I  protest  against  this  and  ask  the  im- 
mediate withdrawal  of  Federal  troops  from  active  duty  in  this  state.  Should 
the  situation  at  any  time  get  so  serious  that  we  cannot  control  it  with  the 
state  forces,  we  will  promptly  and  freely  ask  for  Federal  assistance ;  but  until 
such  time  I  protest  with  all  due  deference  against  this  uncalled-for  reflection 
upon  our  people,  and  again  ask  for  the  immediate  withdrawal  of  these  troops." 

Immediately  upon  the  receipt  of  this  communication,  I  sent  to  Gov- 
ernor Altgeld  the  following  reply : 

"Federal  troops  were  sent  to  Chicago  in  strict  accordance  with  the  constitu- 
tion and  the  laws  of  the  United  States,  upon  the  demand  of  the  Post-Office 
Department  that  obstructions  of  the  mails  should  be  removed,  and  upon  the 
representation  of  the  judicial  officers  of  the  United  States  that  process  of  the 
Federal  courts  could  not  be  executed  through  the  ordinary  means,  and  upon 


44  AMERICAN   FEDERAL   GOVERNMENT 

abundant  proof  that  conspiracies  existed  against  commerce  between  the  states. 
To  meet  these  conditions,  which  are  clearly  within  the  province  of  Federal 
authority,  the  presence  of  Federal  troops  in  the  city  of  Chicago  was  deemed  not 
only  proper  but  necessary;  and  there  has  been  no  intention  of  thereby  inter- 
fering with  the  plain  duty  of  the  local  authorities  to  preserve  the  peace  of  the 
city." 

It  became  at  once  evident  that  the  Governor  was  unwilling  to  allow  the 
matter  at  issue  between  us  to  rest  without  a  renewal  of  argument  and 
protest.  On  the  yth  day  of  July,  the  day  after  the  date  of  my  despatch, 
he  addressed  to  me  another  long  telegraphic  communication,  evidently 
intended  to  be  more  severely  accusatory  and  insistent  than  its  predecessor. 
Its  general  tenor  may  be  inferred  from  the  opening  words: 

"Your  answer  to  my  protest  involves  some  startling  conclusions,  and  ignores 
and  evades  the  question  at  issue —  that  is,  that  the  principle  of  local  self- 
government  is  just  as  fundamental  in  our  institutions  as  is  that  of  Federal 
supremacy.  You  calmly  assume  that  the  executive  has  the  legal  right  to  order 
Federal  troops  into  any  community  of  the  United  States  in  the  first  instance, 
whenever  there  is  the  slightest  disturbance,  and  that  he  can  do  this  without  any 
regard  to  the  question  as  to  whether  the  community  is  able  to  and  ready  to 
enforce  the  law  itself." 

After  a  rather  dreary  discussion  of  the  importance  of  preserving  the 
rights  of  the  states  and  a  presentation  of  the  dangers  to  constitutional 
government  that  lurked  in  the  course  that  had  been  pursued  by  the 
Government,  this  communication  closed  as  follows: 

"Inasmuch  as  the  Federal  troops  can  do  nothing  but  what  the  state  troops  can 
do  there,  and  believing  that  the  state  is  amply  able  to  take  care  of  the  situation 
and  to  enforce  the  law,  and  believing  that  the  ordering  out  of  the  Federal  troops 
was  unwarranted,  I  again  ask  their  withdrawal." 

I  confess  that  my  patience  was  somewhat  strained  when  I  quickly 
sent  the  following  despatch  in  reply  to  this  communication : 

EXECUTIVE  MANSION, 
WASHINGTON,  D.  C.,  July  6,  1894. 

While  I  am  still  persuaded  that  I  have  neither  transcended  my  authority  nor 
duty  in  the  emergency  that  confronts  us,  it  seems  to  me  that  in  this  hour  of 
danger  and  public  distress,  discussion  may  well  give  way  to  active  efforts  on  the 
part  of  all  in  authority  to  restore  obedience  to  law  and  to  protect  life  and 
property.  GROVER  CLEVELAND. 

HON.  JOHN  P.  ALTGELD, 
Governor  of  Illinois. 

This  closed  a  discussion  which  in  its  net  results  demonstrated  how 
far  one's  disposition  and  inclination  will  lead  him  astray  in  the  field  of 
argument. 


POWERS    OF   THE   EXECUTIVE  45 

I  shall  conclude  the  treatment  of  my  subject  by  a  brief  reference  to 
the  legal  proceedings  which  grew  out  of  this  disturbance,  and  finally 
led  to  an  adjudication  by  the  highest  court  in  our  land,  establishing  in 
an  absolutely  authoritative  manner  and  for  all  time,  the  power  of  the 
National  Government  to  protect  itself  in  the  exercise  of  its  functions. 

It  will  be  recalled  that  in  the  course  of  our  narrative  we  left  Mr.  Debs, 
the  president  of  the  Railway  Union,  and  his  three  associates,  in  custody 
of  the  law,  on  the  iyth  day  of  July,  awaiting  an  investigation  of  the 
charge  of  contempt  of  court  made  against  them,  based  upon  their  dis- 
obedience of  the  writs  of  injunction  forbidding  them  to  do  certain  things 
in  aid  or  encouragement  of  interference  with  mail  transportation  or  in- 
terstate commerce. 

This  investigation  was  so  long  delayed  that  the  decision  of  the  Circuit 
Court,  before  which  the  proceedings  were  pending,  was  not  rendered 
until  the  i4th  day  of  December,  1894.  On  that  date  the  court  delivered 
an  able  and  carefully  considered  decision  finding  Debs  and  his  associates 
guilty  of  contempt  of  court,  basing  its  decision  upon  the  provisions  of 
the  law  of  Congress,  passed  in  1890,  entitled:  "An  act  to  protect  trade 
and  commerce  against  unlawful  restraint  and  monopolies;"  sometimes 
called  the  Sherman  Anti-Trust  Law.  Thereupon  the  parties  were  sen- 
tenced on  said  conviction  to  confinement  in  the  county  jail  for  terms 
varying  from  three  to  six  months. 

Afterwards  and  on  the  i4th  day  of  January,  1895,  the  prisoners  ap- 
plied to  the  Supreme  Court  of  the  United  States  for  a  writ  of  habeas 
corpus  to  relieve  them  from  imprisonment,  on  the  ground  that  the  facts 
found  against  them  did  not  constitute  disobedience  to  the  writs  of  in- 
junction and  that  their  commitment  in  the  manner  and  for  the  reasons 
alleged  was  without  justification  and  not  within  the  constitutional  power 
and  jurisdiction  of  the  Circuit  Court. 

On  this  application  the  case  was  elaborately  argued  before  the  Su- 
preme Court  in  March,  1895;  and  on  the  2yth  day  of  May,  1895,  the 
court  rendered  its  decision,  upholding  on  the  broadest  grounds  the  pro- 
ceedings to  the  Circuit  Court  and  confirming  its  adjudication  and  the 
commitment  to  jail  of  the  petitioners  thereupon. 

Justice  Brewer,  in  delivering  the  unanimous  opinion  of  the  Supreme 
Court,  stated  the  case  as  follows : 

"The  United  States,  finding  that  the  interstate  transportation  of  persons  and 
property,  as  well  as  the  carriage  of  mails,  is  forcibly  obstructed  and  that  a 
combination  and  conspiracy  exists  to  subject  the  control  of  such  transportation 
to  the  will  of  the  conspirators,  applied  to  one  of  their  courts  sitting  as  a  court 
of  equity,  for  an  injunction  to  restrain  such  obstructions  and  prevent  carrying 
into  effect  such  conspiracy.  Two  questions  of  importance  are  presented: 
First,  are  the  relations  of  the  General  Government  to  interstate  commerce  and 
the  transportation  of  the  mails,  such  as  authorize  a  direct  interference  to  pre- 
vent a  forcible  obstruction  thereof?  Second,  if  authority  exists —  as  authority 


46  AMERICAN   FEDERAL   GOVERNMENT 

in  governmental  affairs  implies  both  power  and  duty  —  has  a  court  of  equity 
jurisdiction  to  issue  an  injunction  in  aid  of  the  performance  of  such  duty?" 

Both  of  these  questions  were  answered  by  the  court  in  the  affirmative ; 
and  in  the  opinion  read  by  the  learned  justice,  the  inherent  power  of 
the  Government  to  execute  by  means  of  physical  force  through  its  official 
agents,  on  every  foot  of  American  soil,  the  powers  and  functions  belong- 
ing to  it,  was  amply  vindicated  by  a  process  of  reasoning,  simple,  logical, 
unhampered  by  fanciful  distinctions,  and  absolutely  conclusive;  and 
the  Government's  resort  to  the  court,  the  injunction  issued  in  its  aid,  and 
all  the  proceedings  thereon,  including  the  imprisonment  of  Debs  and 
his  associates,  were  fully  approved. 

Thus  the  Supreme  Court  of  the  United  States  has  written  the  con- 
cluding words  of  this  history,  tragical  in  many  of  its  details,  and  in  every 
line  provoking  sober  reflection.  As  we  gratefully  turn  its  concluding 
page  those  most  nearly  related  by  executive  responsibility  to  the  troublous 
days  whose  story  is  told  may  well  congratulate  themselves  especially 
on  their  participation  in  marking  out  the  way  and  clearing  the  path, 
now  unchangeably  established,  which  shall  hereafter  guide  our  nation 
safely  and  surely  in  the  exercise  of  its  functions,  which  represent  the 
people's  trust. 


Ill 

THE  EXECUTIVE  AND  CONGRESS 


[The  relation  of  the  Executive  to  Congress  has  been  subject  to  special  dis- 
cussion of  late.  The  strict  separation  of  the  three  departments  in  matters  of 
government  being  impossible,  there  has  in  general  been  a  feeling  that  it  is 
entirely  proper  for  executive  officials  and  the  President  to  interest  themselves  in 
legislative  measures  affecting  their  particular  work.  This  opinion  has,  however, 
not  passed  without  opposition  as  other  men  have  held  that  while  it  is  allowable 
for  the  executive  to  suggest  legislation,  a  direct  interference  in  the  process  of 
legislative  work  would  lie  beyond  the  proper  sphere  of  executive  duty.  The 
following  extract  from  a  speech  of  James  A.  Garfield  discusses  the  general 
considerations  involved  and  pronounces  in  favor  of  a  closer  relation  between 
the  legislative  and  the  executive.  The  action  of  the  President  in  connection 
with  the  Railway  Rate  legislation,  which  was  subjected  to  much  criticism,  is 
defended  by  Senator  Dolliver,  and  Mr.  Adams  discusses  the  part  of  the  Execu- 
tive in  the  preparation  and  passage  of  the  Meat  Inspection  bill.  The  views  of 
the  opposition  are  developed  by  Senator  Rayner  and  Mr.  Williams.  For  earlier 
discussions  of  the  relations  of  the  President  to  Congress  see  President  Folk's 
annual  message  of  December,  1848,  and  President  Buchanan's  special  mes- 
sages of  March  28,  and  June  22,  1860.] 


JAMES   A.   GARFIELD   ON  THE  EXECUTIVE  AND 
CONGRESS  l 

NOT  the  least  serious  evil  resulting  from  this  ^invasion  of  the  executive 
functions  by  members  of  Congress  is  the  fact  that  it  greatly  impairs  their 
own  usefulness  as  legislators.  One  third  of  the  working  hours  of  Sena- 
tors and  Representatives  is  hardly  sufficient  to  meet  the  demands  made 
upon  them  in  reference  to  appointments  to  office.  The  spirit  of  that 
clause  of  the  Constitution  which  shields  them  from  arrest  "during  their 
attendance  at  the  session  of  their  respective  houses,  and  in  going  to  or 
returning  from  the  same,"  should  also  shield  them  from  being  arrested 
from  their  legislative  work,  morning,  noon,  and  night,  by  office-seekers. 
To  sum  up  in  a  word,  the  present  system  invades  the  independence  of 
the  Executive,  and  makes  him  less  responsible  for  the  character  of  his 
1  From  an  address  on  "A  Century  of  Congress  "  (1877).  See  Works,  II,  483. 

47 


48  AMERICAN   FEDERAL   GOVERNMENT 

appointments ;  it  impairs  the  efficiency  of  the  legislator  by  diverting  him 
from  his  proper  sphere  of  duty,  and  involving  him  in  the  intrigues  of 
aspirants  for  office ;  it  degrades  the  civil  service  itself  by  destroying  the 
personal  independence  of  those  who  are  appointed;  it  repels  from  the 
service  those  high  and  manly  qualities  which  are  so  necessary  to  a  pure 
and  efficient  administration;  and  finally,  it  debauches  the  public  mind 
by  holding  up  public  office  as  the  reward  of  mere  party  zeal. 

To  reform  this  service  is  one  of  the  highest  and  most  imperative  duties 
of  statesmanship.  This  reform  cannot  be  accomplished  without  a  com- 
plete divorce  between  Congress  and  the  Executive  in  the  matter  of  ap- 
pointments. It  will  be  a  proud  day  when  an  administration  Senator  or 
Representative,  who  is  in  good  standing  in  his  party,  can  say,  as  Thomas 
Hughes  said  during  his  recent  visit  to  this  country,  that,  though  he  was 
on  the  most  intimate  terms  with  the  members  of  the  English  adminis- 
tration, yet  it  was  not  in  his  power  to  secure  the  removal  of  the  humblest 
clerk  in  the  civil  service  of  the  government. 

This  is  not  the  occasion  to  discuss  the  recent  enlargement  of  the  juris- 
diction of  Congress  in  reference  to  the  election  of  a  President  and  Vice- 
President  by  the  States.  But  it  cannot  be  denied  that  the  Electoral  Bill 
has  opened  a  wide  and  dangerous  field  for  Congressional  action.  Un- 
less the  boundaries  of  its  power  shall  be  restricted  by  a  new  amendment 
of  the  Constitution,  we  have  seen  the  last  of  our  elections  of  President 
on  the  old  plan.  The  power  to  decide  who  has  been  elected  may  be  so 
used  as  to  exceed  the  power  of  electing. 

I  have  long  believed  that  the  official  relations  between  the  Executive 
and  Congress  should  be  more  open  and  direct.  They  are  now  conducted 
by  correspondence  with  the  presiding  officers  of  the  two  Houses,  by  con- 
sultation with  committees,  or  by  private  interviews  with  individual  mem- 
bers. This  frequently  leads  to  misunderstandings,  and  may  lead  to  cor- 
rupt combinations.  It  would  be  far  better  for  both  departments  if  the 
members  of  the  Cabinet  were  permitted  to  sit  in  Congress  and  partici- 
pate in  the  debates  on  measures  relating  to  their  several  departments,  — 
but,  of  course,  without  a  vote.  This  would  tend  to  secure  the  ablest  men 
for  the  chief  executive  offices ;  it  would  bring  the  policy  of  the  admin- 
istration into  the  fullest  publicity  by  giving  both  parties  ample  oppor- 
tunity for  criticism  and  defense. 

As  a  result  of  the  great  growth  of  the  country  and  of  the  new  legisla- 
tion arising  from  the  late  war,  Congress  is  greatly  overloaded  with  work. 
It  is  safe  to  say  that  the  business  which  now  annually  claims  the  atten- 
tion of  Congress  is  tenfold  more  complex  and  burdensome  than  it  was 
forty  years  ago.  For  example:  the  twelve  annual  appropriation  bills, 
with  their  numerous  details,  now  consume  two  thirds  of  each  short  ses- 
sion of  the  House.  Forty  years  ago,  when  the  appropriations  were  made 
more  in  block,  one  week  was  sufficient  for  the  work.  The  vast  extent  of 
our  country,  the  increasing  number  of  States  and  Territories,  the  legisla- 


THE  EXECUTIVE  AND   CONGRESS  49 

tion  necessary  to  regulate  our  mineral  lands,  to  manage  our  complex 
systems  of  internal  revenue,  banking,  currency,  and  expenditure,  have  so 
increased  the  work  of  Congress  that  no  one  man  can  even  read  the  bills 
and  the  official  reports  relating  to  current  legislation,  much  less  qualify 
himself  for  intelligent  action  upon  them.  As  a  necessary  consequence, 
the  real  work  of  legislation  is  done  by  the  committees ;  and  their  work 
must  be  accepted  or  rejected  without  full  knowledge  of  its  merits.  This 
fact  alone  renders  leadership  in  Congress,  in  the  old  sense  of  the  word, 
impossible.  For  many  years  we  have  had  the  leadership  of  committees 
and  chairmen  of  committees ;  but  no  man  can  any  more  be  the  leader  of 
all  the  legislation  of  the  Senate  or  of  the  House  than  one  lawyer  or  one 
physician  can  now  be  foremost  in  all  the  departments  of  law  or  medicine. 
The  evils  of  loose  legislation  resulting  from  this  situation  must  increase, 
rather  than  diminish,  until  a  remedy  is  provided. 

John  Stuart  Mill  held  that  a  numerous  popular  assembly  is  radically 
unfit  to  make  good  laws,  but  is  the  best  possible  means  of  getting  good 
laws  made.  He  suggested,  as  a  permanent  part  of  the  constitution  of  a 
free  country,  a  legislative  commission,  composed  of  a  few  trained  men, 
to  draft  such  laws  as  the  legislature,  by  general  resolutions,  shall  direct, 
which  draft  shall  be  adopted  by  the  legislature,  without  change,  or  re- 
turned to  the  commission  to  be  amended.  Whatever  may  be  thought  of 
Mr.  Mill's  suggestion,  it  is  clear  that  some  plan  must  be  adopted  to  re- 
lieve Congress  from  the  infinite  details  of  legislation,  and  to  preserve 
harmony  and  coherence  in  our  laws. 

Another  change  observable  in  Congress,  as  well  as  in  the  legislatures 
of  other  countries,  is  the  decline  of  oratory.  The  press  is  rendering  the 
orator  obsolete.  Statistics  now  furnish  the  materials  upon  which  the 
legislator  depends ;  and  a  column  of  figures  will  often  demolish  a  dozen 
pages  of  eloquent  rhetoric. 

Just  now,  too,  the  day  of  sentimental  politics  is  passing  away,  and  the 
work  of  Congress  is  more  nearly  allied  to  the  business  interests  of  the 
country  and  to  "the  dismal  science,"  as  political  economy  is  called  by 
the  "practical  men"  of  our  time.  The  legislation  of  Congress  comes 
much  nearer  to  the  daily  life  of  the  people  than  ever  before.  Twenty 
years  ago,  the  presence  of  the  national  government  was  not  felt  by 
one  citizen  in  a  hundred.  Except  in  paying  his  postage  and  receiving  his 
mail,  the  citizen  of  the  interior  rarely  came  in  contact  with  the  national 
authority.  Now,  he  meets  it  in  a  thousand  ways.  Formerly  the  legisla- 
tion of  Congress  referred  chiefly  to  our  foreign  relations,  to  indirect  taxes, 
to  the  government  of  the  army,  the  navy,  and  the  Territories.  Now,  a 
vote  in  Congress  may,  any  day,  seriously  derange  the  business  affairs  of 
every  citizen. 

And  this  leads  me  to  say  that  now,  more  than  ever  before,  the  people 
are  responsible  for  the  character  of  their  Congress.  It  that  body  be  igno- 
rant, reckless,  and  corrupt,  it  is  because  the  people  tolerate  ignorance, 


50  AMERICAN  FEDERAL   GOVERNMENT 

recklessness,  and  corruption.  If  it  be  intelligent,  brave,  and  pure,  it  is 
because  the  people  demand  those  high  qualities  to  represent  them  in  the 
national  legislature.  Congress  lives  in  the  blaze  of  "that  fierce  light 
which  beats  against  the  throne."  The  telegraph  and  the  press  will  to- 
morrow morning  announce  at  a  million  breakfast-tables  what  has  been 
said  and  done  in  Congress  to-day.  Now,  as  always,  Congress  represents 
the  prevailing  opinions  and  political  aspirations  of  the  people.  The 
wildest  delusions  of  paper  money,  the  crudest  theories  of  taxation,  the 
passions  and  prejudices  that  find  expression  in  the  Senate  and  House, 
were  first  believed  and  discussed  at  the  firesides  of  the  people,  on  the 
corners  of  the  streets,  and  in  the  caucuses  and  conventions  of  political 
parties. 


SENATOR    DOLLIVER    ON    THE    PRESIDENT1 

THE  Senate,  as  in  Committee  of  the  Whole,  resumed  the  consideration 
of  the  bill  (H.  R  12987)  to  amend  an  act  entitled  "An  act  to  regulate 
commerce,"  approved  February  4,  1887,  and  all  acts  amenclatory 
thereof,  and  to  enlarge  the  powers  of  the  Interstate  Commerce  Com- 
mission. 

Mr.  DOLLIVER.  Mr.  President,  I  have  listened  with  very  great  atten- 
tion and  pleasure  to  the  speech  of  the  honorable  Senator  from  Missouri 
[Mr.  Stone],  and  I  do  not  rise  now  for  the  purpose  of  replying  to  it,  for 
the  reason  that  in  the  main  the  Senator's  researches  have  brought  him  to 
the  same  conclusions  that  have  influenced  my  own  opinions.  I  am  in- 
clined to  think  that  while  in  the  main  the  analysis  of  the  Senator  from 
Missouri  of  the  jurisdiction  of  the  courts  under  the  House  bill  and  under 
the  amendment  which  has  been  offered  to  that  bill  by  the  Senator  from 
Kansas  [Mr.  Long]  is  correct,  a  slight  element  of  misunderstanding 
enters  into  his  statement. 

I  have  held  from  the  beginning  that  the  House  bill  is  so  framed  that  the 
courts  have  under  it  exactly  the  jurisdiction  which  the  Constitution  gives 
them.  I  have  considered  the  fixing  of  a  railroad  rate  through  the  Com- 
mission as  an  act  of  Congress.  I  can  find  no  authority  in  the  Constitu- 
tion for  the  exercise  of  the  power  to  regulate  interstate  commerce  except 
that  power  which  is  conferred  upon  the  Congress;  and  I  have  been 
driven  by  long  meditation  to  the  conclusion  that  whatever  else  this  order 
of  the  Commission  is,  it  is  an  act  of  Congress ;  for  Congress  has  the  only 
power  conferred  by  the  Constitution  to  regulate  commerce  between  the 
States. 

******** 

I  have  risen  for  a  different  purpose.  Much  has  been  said  —  some  of 
it  with  marked  solemnity  and  seriousness  and  some  with  evident  appre- 

1  Congr.  Record,  April  5,  1906. 


THE   EXECUTIVE   AND    CONGRESS  51 

elation  of  the  humor  which  is  supposed  to  be  involved  in  it  —  about  the 
interference  of  the  President  of  the  United  States  in  the  work  of  the  Senate. 
Nobody  denies  that  the  President  has  a  certain  relation  to  the  legislative 
business  of  the  Government  of  the  United  States.  At  any  rate,  if  there 
ever  was  an  excuse  given  to  the  President  of  the  United  States  to  publicly 
explain  his  views  and  opinions,  it  has  been  given  by  the  course  of  this 
debate. 

On  last  Saturday  my  distinguished  friend  the  Senator  from  Ohio  [Mr. 
Foraker],  responding  to  a  request,  or  a  suggestion,  I  suppose,  of  the 
legislature  of  that  State  calling  upon  him  to  support  the  President,  wrote 
a  letter  that  he  was  supporting  the  President,  and  proved  it  by  quoting 
from  the  President's  message  that  he  desired  the  proceedings  of  the 
Commission  to  be  subject  to  judicial  review.  And  only  this  morning  a 
famous  newspaper  printed  an  extract  from  the  President's  message,  and 
denounced  the  amendment  of  my  honorable  friend  the  Senator  from 
Kansas  on  the  ground  that  it  was  in  violation  of  the  President's  views 
and  attitude  upon  this  question. 

I  am  not  one  of  those  who  have  been  irritated  by  the  interest  which  the 
President  of  the  United  States  has  taken  in  this  controversy.  His  interest 
has  been  upon  the  broadest  and  highest  national  ground.  He  has  stated 
his  views  and  convictions  to  the  American  people  in  every  section  of  the 
country,  and  not  one  line  can  be  attributed  to  him  having  in  it  the  trace  of 
a  partisan  outlook  upon  this  great  national  question.  Therefore  what- 
ever interest  he  has  taken  in  it  can  certainly  not  be  attributed  to  a  partisan 
design  of  any  kind  or  character. 

I  have  been  familiar  for  a  good  many  years  with  the  attitude  of  the 
Executive  Department  of  the  Government  toward  the  work  of  Congress. 
There  is  a  member  of  the  Senate  now  who,  if  he  were  disposed  to  give 
his  experience,  would  be  able  to  verify  what  I  say,  that  it  has  been  for 
many  years  the  no  uncommon  practice  for  the  Congress  of  the  United 
States  to  take  counsel  with  the-  Executive  Departments  in  perfecting 
great  acts  of  national  legislation.  There  are  at  least  five  acts  of  legisla- 
tion, all  of  them  referring  to  this  and  similar  questions,  that  were  put 
through  both  Houses  of  Congress  in  the  last  five  years  practically  with- 
out change,  as  they  came  from  the  office  of  the  Attorney-General  of  the 
United  States. 

In  the  present  controversy  the  Attorney-General  has  certainly  had  the 
invitation  of  the  legislative  branch  of  the  Government  to  take  an  interest 
in  this  matter.  A'mong  the  very  first  things  the  Committee  on  Interstate 
Commerce  did  was  to  invite  him  to  give  his  opinion  in  writing  to  the  com- 
mittee explaining  to  us  our  powers  and  making  what  suggestions  he 
thought  desirable  in  relation  to  this  legislation,  It  is  a  difficult,  a  com- 
plex, an  almost  impenetrable  subject  with  which  we  have  been  called 
upon  to  deal,  and  I  do  not  propose  to  be  disparaged  or  to  allow  anybody 
else  to  be  disparaged  by  a  sneering  suggestion  that  we  have  consulted  the 


52  AMERICAN   FEDERAL   GOVERNMENT 

Attorney-General  or  even  the  President  of  the  United  States.  I  count  it 
just  as  respectable  and  just  as  perfectly  in  line  with  my  public  duty  to 
take  counsel  with  the  President  of  the  United  States  on  these  questions 
as  for  my  colleagues  and  for  others  to  hold  sweet  counsel  with  the 
presidents  of  railroad  corporations. 

Mr.  President,  I  do  not  propose  to  submit,  without  at  least  a  word  of 
protest,  to  the  suggestion  that  the  President  of  the  United  States  is  de- 
livering over  this  bill  to  the  tender  mercies  of  its  enemies.  It  is  a  non- 
partisan  proposition.  It  has  friends  on  both  sides  of  this  Chamber,  good 
friends  on  both  sides  of  this  Chamber.  It  has  possibly  enough  to 
perfect  the  legislation  and  put  it  through  in  an  effective  and  satisfactory 
form.  But  whether  or  not  it  has  that  number  of  members  of  the  Senate 
in  favor  of  it,  its  friends  do  not  propose  to  surrender  any  principle  that 
is  involved  in  it.  They  have  had  a  long  and  arduous  fight,  and  they  are 
ready  for  a  good  many  years  of  fighting  yet.  I  undertake  to  say  here  that 
if  the  Senate  of  the  United  States  does  not  conform  this  measure  to  the 
petition  of  those  who  have  supported  it  by  the  million  throughout  the 
United  States  we  do  not  settle  this  question.  Unless  the  effective  legis- 
lation which  is  demanded  by  the  American  people  is  given  by  the  Con- 
gress of  the  United  States,  instead  of  settling  this  issue  we  merely  create 
the  largest  national  issue  with  which  this  generation  will  have  to  deal. 

Mr.  President,  there  is  not  a  line  in  the  public  or  private  writings  of  the 
President  of  the  United  States  to  warrant  the  suggestion  that  any  man  is 
supporting  him  or  supporting  the  ideas  to  which  he  has  given  expression 
during  the  last  two  years  by  so  amending  this  bill  as  to  transfer  this  power 
of  Congress  to  the  Courts  of  the  United  States.  The  newspaper  to  which 
I  alluded  a  moment  ago  printed  an  extract  from  one  of  the  President's 
speeches,  and  followed  it  with  a  denunciation  of  the  amendment  which 
my  friend  the  Senator  from  Kansas  introduced  yesterday,  leaving  the 
impression  upon  the  public  mind,  with  a  curious  mixture  of  sincerity  and 
satire,  that  the  President  of  the  United  States  had  either  changed  his 
position  or  had  never  occupied  any  such  position  as  he  would  be  put  in 
by  the  amendment  of  the  Senator  from  Kansas. 

Fortunately  in  connection  with  the  President's  messages  we  have  some 
outside  knowledge  of  what  his  notions  and  his  ideas  have  been  in  respect 
to  these  matters,  because  with  a  freedom  which  has  been  characteristic 
of  his  public  career,  and  I  think  a  very  admirable  part  of  his  idea  of 
public  duty,  he  has  taken  the  American  people  into  his  confidence  in 
every  section  of  the  United  States.  It  is  true  that  in  his  message  he  sug- 
gested that  the  orders  of  the  Commission  were  to  be  subject  to  the  re- 
view of  the  courts,  and  if  I  have  correctly  interpreted  the  purpose  of  the 
honorable  Senator  from  Kansas  in  introducing  his  amendment,  it  was 
for  the  purpose  of  defining  before  the  American  people  exactly  what  sort 
of  a  review  the  friends  of  this  legislation  desire  to  have. 

Not  one  of  them  desires  to  leave  this  railroad  property  without  redress 


THE   EXECUTIVE   AND    CONGRESS  53 

against  a  violation  of  constitutional  rights.  Not  one  of  them  desires  an 
act  of  oppression  or  injustice  against  these  carriers,  whether  committed 
in  malice  or  through  error,  to  go  without  a  proper  redress  in  the  courts 
of  the  United  States. 

The  President  of  the  United  States  in  his  annual  message  asked  that 
these  orders  be  made  "subject  to  review  in  the  courts."  But  for  months 
before  that  he  had  been  explaining  to  the  American  people  exactly  what 
jurisdiction  he  thought  the  courts  should  occupy  in  the  matter,  and  I 
desire  to  take  the  opportunity  of  putting  into  the  Record  an  extract  from 
a  speech  made  by  the  President  before  a  Democratic  club  in  the  city 
of  Chicago  —  the  Iroquois  Club  —  some  time  before  the  last  message 
to  Congress  was  sent,  which,  in  my  humble  judgment,  shows  that  the 
President  occupies  now  exactly  the  position  he  occupied  then,  and  ex- 
actly the  position  which  he  explained  in  his  brief  recommendation  to 
Congress  last  December  upon  this  subject.  He  said: 

Personally,  I  believe  that  the  Federal  Government  must  take  an  increasing 
control  over  corporations.  It  is  better  that  that  control  should  increase  by 
degrees  than  that  it  should  be  assumed  all  at  once.  But  there  should  be,  and  I 
trust  will  be,  no  halt  in  the  steady  progress  of  assuming  such  national  control. 
The  first  step  toward  it  should  be  the  adoption  of  a  law  conferring  upon  some 
executive  body  the  power  of  increased  supervision  and  regulation  of  the  great 
corporations  engaged  primarily  in  interstate  commerce  of  the  railroads.  My 
views  on  that  subject  could  not  have  been  better  expressed  than  they  were 
expressed  yesterday  by  Secretary  Taft  in  Washington,  and  as  they  were  ex- 
pressed by  the  Attorney-General  in  his  communication  to  the  Senate  committee 
a  couple  of  weeks  ago :  "I  believe  that  the  representatives  of  the  nation  —  that 
is,  the  representatives  of  all  the  people —  should  lodge  in  some  executive  body 
the  power  to  establish  a  maximum  rate,  the  power  to  have  that  rate  go  into 
effect  practically  immediately,  and  the  power  to  see  that  the  provisions  of  the 
law  apply  in  full  to  companies  owning  private  cars  and  private  tracks  just  as 
much  as  the  railroads  themselves.  The  courts  will  retain,  and  should  retain, 
no  matter  what  the  Legislature  does,  the  power  to  interfere  and  upset  any  action 
that  is  confiscatory  in  its  nature." 

Again,  in  his  speech  delivered  before  the  Chamber  of  Commerce  of 
Denver  only  a  few  months  before  the  sending  of  the  President's  last 
message  to  Congress,  he  used  these  words: 

But  with  that  statement  as  a  preliminary,  I  wish  to  urge  with  all  the  earnest- 
ness I  possess,  not  only  upon  the  public,  but  upon  those  interested  in  the  great 
railway  corporations,  the  absolute  need  of  acquiescence  in  the  enactment  of 
such  law.  As  has  been  well  set  forth  by  the  Attorney-General,  Mr.  Moody,  in 
his  recent  masterly  argument  presented  to  the  committee  of  the  Senate  which  is 
investigating  the  matter,  the  legislators  have  the  right,  and,  as  I  believe,  the 
duty,  to  confer  these  powers  upon  some  executive  body.  It  can  not  confer 
them  upon  any  court,  nor  can  it  take  away  the  court's  power  to  interfere  if  the 
law  is  administered  in  a  way  that  amounts  to  confiscation  of  property. 


54  AMERICAN   FEDERAL   GOVERNMENT 

So,  from  the  beginning  the  President  has  been  clear  and  straight  in 
his  interpretation  of  his  situation,  and  I  doubt  very  much  whether  it 
would  have  been  necessary  for  him  to  address  these  speeches  to  the 
country  or  to  take  the  slightest  interest,  with  those  who  have  been  trying, 
amid  a  good  many  difficulties,  to  perfect  legislation,  if  it  were  not  for 
the  fact  that  persistently  the  argument  for  a  review  of  the  orders  of  the 
Commission  and  a  trial  of  the  case  de  novo  in  the  courts,  from  the  be- 
ginning of  this  debate,  has  taken  refuge  behind  six  words  in  the  Presi- 
dent's message,  to  wit,  that  the  order  of  the  Commission  should  be  sub- 
ject to  review  in  the  courts. 

I  submit  in  all  fairness  that  it  is  hardly  proper  for  men  who  know 
exactly  what  the  President  of  the  United  States  has  stood  for,  exactly 
what  he  is  trying  to  do,  whether  they  indorse  it  or  nor  —  it  is  hardly 
proper  to  deal  with  the  American  people,  with  the  idea  that  they  are 
supporting  the  President,  when  in  point  of  fact  they  are  urging  a  propo- 
sition that  is  not  only  not  contained  in  anything  the  President  has  ever 
said,  but  reduces  the  President's  recommendation  to  a  practical  and 
legal  absurdity  before  the  whole  country. 

I  have  spoken  in  this  way,  Mr.  President,  not  for  the  purpose  of  irri- 
tating anybody's  feelings.  I  know  that  much  is  said  here  in  the  Senate 
about  Executive  interference,  but  I  close  by  suggesting  that  the  institu- 
tions and  legislation  of  the  American  people  are  much  more  liable  to  be 
damaged  here  in  the  Senate  of  the  United  States  by  interference  from 
other  quarters  than  by  the  friendly  and  patient  suggestions  of  the  Presi- 
dent of  the  United  States. 

Mr.  BAILEY.  Mr.  President,  I  belong  to  that  very  small  class  of 
Senators  and  Representatives  who  do  not  believe  that  it  is  proper  for 
them  to  be  influenced  in  the  performance  of  their  legislative  duties  by 
the  views  of  the  executive  department ;  and  it  has  never  been  my  prac- 
tice since  I  had  the  honor  to  occupy  a  seat  in  Congress  to  confer  with 
any  President,  either  of  my  own  or  of  the  opposition  party,  in  respect  to 
any  legislation. 

The  only  exception  I  ever  made  —  and  that  more  apparent  than 
real  —  was  in  the  case  of  the  lamented  and  martyred  McKinley,  whose 
invitation  I  accepted  to  confer  with  him  in  the  hope  that  we  might  find 
a  way  to  avert  the  war  with  Spain.  Upon  a  question  like  that,  which 
was  not  legislative,  I  felt  that  any  Member  of  Congress  might  properly 
confer  with  the  Executive  of  the  Republic.  But,  sir,  I  have  so  often 
seen  —  and  this  applies  not  only  to  the  present  President  of  the  United 
States,  but  to  his  predecessors  in  that  great  office  —  I  have  so  often  seen 
the  judgment  of  Congress  overruled  or  controlled  by  Executive  influence 
that  early  in  my  service  in  the  other  House  I  resolved  that  it  should  never 
prevail  with  me. 

I  remember  when  a  mere  schoolboy  reading  of  a  great  Virginia  Demo- 
crat being  invited  to  the  White  House  by  a  President,  of  his  own  party 


THE   EXECUTIVE   AND    CONGRESS  55 

and  chosen  from  his  own  State,  to  confer  upon  an  important  question 
pending  in  the  Congress,  and  I  remember  how  my  youthful  blood  was 
made  to  run  faster  when  I  read  how  that  great  Virginia  Democrat  said : 
"Mr.  President,  the  Constitution  of  the  United  States  has  separated 
the  executive  and  the  legislative  departments  of  this  Government,  and, 
by  the  help  of  God,  I  intend  to  keep  them  separate."  I  adopted  that 
as  my  creed  and  I  have  lived  up  to  it  from  that  day  to  this. 

But  I  must  say  if  ever  a  President  was  justified  in  conferring  with  his 
friends  in  Congress,  this  measure  and  these  circumstances  furnish  that 
justification.  Earnestly  and,  as  I  believe,  sincerely  striving  to  put  upon 
the  statute  book  a  useful  measure,  he  finds  himself  confronted  with  the 
opposition  of  his  own  party.  I  am  safely  within  the  truth  when  I  say 
that  less  than  one-third  of  the  President's  party  friends  in  this  Chamber 
sympathize  with  this  effort  to  secure  the  enactment  of  this  legislation. 

Mr.  ALDRICH.     Mr.  President 

Mr.  BAILEY.  I  hope  the  Senator  from  Rhode  Island  is  going  to  in- 
clude himself  in  that  one-third  who  help  the  President. 

Mr.  ALDRICH.  So  far  as  I  know,  there  is  no  Senator  sitting  upon 
this  side  who  does  not  sympathize  fully  with  the  Senator  from  Texas 
and  the  President  of  the  United  States  in  a  desire  to  secure  effective 
and  proper  legislation  with  reference  to  the  regulation  of  railroad  rates. 
That  a  large  part  of  the  Senators  on  this  side  do  not  sympathize  either 
with  the  President  or  with  the  junior  Senator  from  Iowa  in  an  attempt 
and  purpose  to  so  limit  and  circumscribe  the  rights  of  the  people  of  the 
United  States  that  they  can  not  be  effectively  secured  through  the  courts 
of  the  country  I  will  frankly  admit. 

Mr.  BAILEY.  Mr.  President,  the  Senator  from  Rhode  Island  always 
knows  exactly  what  he  wants,  but  he  sometimes  makes  the  mistake  of 
supposing  that  other  people  do  not  also  know  what  he  wants.  I  know 
that  a  large  number  of  Republican  Senators  honestly  believe  that  this 
legislation  is  unnecessary,  and  another  per  cent  of  gentlemen  on  that 
side  honestly  believe  that  it  will  be  hurtful.  I  have  no  quarrel  with  them, 
if  that  is  their  honest  opinion;  and  I  am  one  of  the  men  who  believe 
and  who  dare  to  say,  in  spite  of  all  the  slanders  that  fill  the  air,  that  a 
large  majority  of  the  men  in  this  body  want  to  do  what  they  think  is 
right.  I  accord  to  others  the  same  honesty  of  purpose  and  motive  that 
I  claim  for  myself,  but  it  is  no  impeachment  of  their  patriotism  to  say  that 
they  differ  with  the  President,  and  their  differences  with  him,  I  repeat, 
make  it  permissible,  if  it  can  ever  be  permissible,  for  the  Executive  to 
seek  conferences  with  the  members  of  the  legislative  department. 

Now,  Mr.  President,  one  expression  by  the  Senator  from  Iowa  [Mr. 
Dolliver]  gives  me  even  more  concern  than  the  open  admission  that  the 
President  has  been  striving  by  conference  and  suggestion  to  shape  the 
legislation  of  Congress  on  this  subject.  The  Senator  from  Iowa  says 
that  those  who  have  conferred  with  the  President  have  rendered  the 


56  AMERICAN  FEDERAL   GOVERNMENT 

country  a  better  service  than  others  who  have  been  conferring  with  the 
presidents  of  railroads.  I  cordially  agree  to  that  statement.  But,  Mr. 
President,  the  Senate  is  entitled  to  know  who  it  is  here  who  has  been 
conferring  with  the  presidents  of  the  railroads.  If  any  Senator  here 
has  been  conferring  with  the  railroads  or  the  presidents  of  the  railroads, 
with  a  view  to  defeating  legislation  in  the  public  interest,  the  Senate  is 
entitled  to  know  it,  and  the  country  is  entitled  to  know  it. 

The  Senator  from  Iowa  is  not  given  to  intemperate  or  incautious 
speech,  and  when  he  suggests  that  Senators  who  are  striving  to  accom- 
plish the  defeat  of  this  bill  are  consulting  with  the  presidents  of  railroads 
with  a  view  to  that  end,  just  as  he  and  others  who  are  striving  to  pass  it 
are  consulting  with  the  President  of  the  United  States  with  a  view  to 
that  end,  he  utters  a  serious  reflection  upon  some  Senators  —  not  upon 
the  Senate,  because  no  man  believes  that  such  conferences  as  that  in- 
clude the  Senate.  But  if  they  include  any  Senator  or  any  Senators,  the 
country  and  the  Senate  are  entitled  to  know  who  these  Senators  are. 

Mr.  Fo RAKER.  Mr.  President,  the  Senator  from  Texas  [Mr.  Bailey] 
has  only  anticipated  what  I  wanted  to  say.  As  the  Senator  from  Texas 
has  well  said,  the  charge  —  for  it  is  not  anything  short  of  that  —  that 
Senators  who  are  in  opposition  to  the  bill  he  is  supporting  are  in  con- 
ference here  from  time  to  time  with  presidents  of  railroads  — 

Mr.  ALDRICH.     With  a  view  of  defeating  the  bill. 

Mr.  FORAKER.  With  a  view  of  defeating  the  bill  is  a  most  serious 
one,  and  the  Senators  referred  to  should  be  named.  I  respectfully  de- 
mand of  the  Senator  from  Iowa  that  he  name  the  Senators,  so  that  if 
there  is  a  member  of  this  body  engaged  in  such  conferences  we  may 
know  who  it  is. 

Mr.  DOLLIVER.  I  shall  take  the  liberty  of  not  pursuing  that  con- 
troversy. 

Mr.  FORAKER.  Well,  Mr.  President,  it  seems  to  me  the  Senate  has 
a  right  to  know.  I  do  not  imagine  the  Senator  refers  to  me,  but  I  do 
know,  as  every  other  Senator  must  know,  that  the  suggestion  of  the 
Senator  was  broad  enough  to  include  every  member  of  this  body. 

Mr.  DOLLIVER.  I  have  never  dreamed  that  there  was  any  impro- 
priety in  consulting  with  presidents  of  railroads.  I  presume  hardly  a 
man  here  but  has  sought  the  counsel  and  suggestion  of  those  who  were 
practically  familiar  with  railway  business.  In  connection  with  my 
honorable  friend  from  Ohio,  I  spent  three  months  last  spring  hearing 
the  views  of  as  distinguished  a  group  of  railroad  managers  as  ever  as- 
sembled anywhere  in  the  world,  and  I  have  never  thought  that  a  man 
could  not  talk  with  railroad  presidents  without  being  charged  with  some 
form  of  impropriety.  I  have  no  notion  that  a  man  can  be  guilty  of  the 
offense  of  consulting  with  the  Chief  Magistrate  of  the  American  people 
without  being  made  the  subject  of  ridicule  and  misconstruction  of  his 
motive. 


THE   EXECUTIVE   AND    CONGRESS  57 

Mr.  FORAKER.  I  have  never  complained  of  anyone  who  has  seen 
fit  to  confer  with  the  Chief  Magistrate  of  the  nation.  I  do  so  whenever 
I  see  fit  to  and  he  will  permit  it.  I  am  always  glad  to  do  it.  I  never 
think  of  anyone  conferring  with  the  President  having  any  improper 
motive  in  veiw. 

So  far  as  conferences  with  railroad  presidents  are  concerned,  I  do 
not  know  of  any  on  the  part  of  any  member  of  this  body.  It  is  true  that 
when  the  Senate  Committee  on  Interstate  Commerce  had  hearings, 
covering  five  or  six  weeks  last  spring,  a  number  of  railroad  officials  ap- 
peared before  that  committee  and  gave  their  testimony,  just  the  same 
as  any  other  witnesses ;  but  I  do  not  know  of  any  member  of  the  com- 
mittee conferring  with  those  railroad  officials  at  that  time.  I  do  not 
know  of  any  member  of  that  committee  or  any  member  of  this  body 
conferring  at  any  time  or  place  with  any  railroad  official  concerning  this 
proposed  legislation. 

Now,  Mr.  President,  it  will  not  do  for  the  Senator  to  say  he  had  no 
thought  or  purpose  of  insinuating  that  there  wras  anything  improper  in 
such  conferences,  for  the  Senator  said  in  so  many  words  that  Senators 
had  been  conferring  with  railroad  presidents  in  order  that  they  might 
better  know  how  to  defeat  this  legislation.  Only  one  inference  could  be 
drawn  from  that,  and  that  was  that  men  who  do  not  agree  with  the 
Senator  from  Iowa  in  his  support  of  this  measure  were  representing  in 
some  such  way  as  has  been  charged  railroad  interests  or  railroad  officials. 
I  know  of  no  railroad  officials  having  anything  whatever  to  do  with  this 
legislation,  except  only  to  express  their  views  when  they  came  before  the 
committee.  No  railroad  official,  so  far  as  I  can  recall,  has  ever  talked 
with  me  at  any  time  or  any  place,  and  I  do  not  believe  that  any  railroad 
official  has  ever  talked  in  any  improper  way  with  anybody  else  who  is 
in  opposition  to  this  proposed  legislation. 

Mr.  TILLMAN.  If  the  Senator  will  pardon  me,  I  saw  in  the  news- 
papers a  day  or  two  ago  a  statement  that  President  Mellen,  of  one  of 
the  New  England  roads  —  I  have  forgotten  which  —  had  been  to  the 
White  House  for  lunch,  conferring  with  the  President  about  this  matter, 
and  rumor  had  it  that  he  went  there  to  demand  that  certain  features  of 
the  Hepburn  bill  should  be  stricken  out  —  that  part  of  the  bill  which 
relates  to  requiring  the  railroads  to  keep  a  certain  kind  of  books  and 
no  other  kind. 

While  I  am  on  my  feet,  if  the  Senator  will  pardon  me,  I  should  like, 
as  one  witness,  to  give  some  little  testimony  in  this  interesting  contro- 
versy among  the  brethren  on  that  side  as  to  what  took  place  at  the  hear- 
ings before  the  Interstate  Commerce  Committee.  I  can  not  recall  the 
date,  but  I  recollect  very  distinctly  that  a  gentleman  came  into  the 
committee  room  and,  after  shaking  hands  with  a  few  of  his  friends, 
passed  on  to  the  inner  sanctuary,  and  I  did  not  see  him  any  more ;  but  I 
was  afterwards  informed  that  he  was  Mr.  A.  J.  Cassatt,  of  the  Pennsyl- 


58  AMERICAN  FEDERAL   GOVERNMENT 

vania  road.  Now,  what  his  business  was  or  with  whom  he  conferred 
I  do  not  pretend  to  say.  I  merely  state  that  as  a  fact. 

Mr.  FORAKER.  Mr.  President,  I  do  not  know  anything  about  the 
occasion  to  which  the  Senator  refers.  I  never  met  Mr.  Cassatt  but  once 
in  my  life,  and  I  met  him  at  the  White  House  then.  He  was  there  calling 
upon  the  President. 

Mr.  President,  let  me  call  attention  to  the  fact  in  this  connection, 
now  that  Mr.  Cassatt  has  been  named  in  the  way  he  has,  that  he  is  one 
of  the  railroad  presidents  of  the  country  who  has  been  favoring  this 
proposed  rate  making  on  the  part  of  the  Government  for  the  railroads 
of  the  country,  and  Mr.  Mellen,  who  was  referred  to,  is  another.  They 
have  been  advocates  of  this  kind  of  legislation  all  the  while.  There  are 
railroads  on  both  sides  of  the  question.  At  least,  such  is  the  report  as 
to  Mr.  Cassatt  and  Mr.  Mellen. 

I  have  very  frequently  seen  notices  of  their  presence  in  the  city,  but 
never  having  seen  Mr.  Cassatt  but  the  one  time,  of  course  I  do  not  know 
what  he  was  here  for,  except  only  as  the  newspapers  may  have  advised. 
I  never  met  Mr.  Mellen ;  I  do  not  know  him  at  all ;  but  I  have  noticed 
that  he  has  been  here  frequently  and  that  at  such  times  he  was  usually  in 
conference  with  the  President,  and  always  about  railway  rate  legislation. 

I  can  understand,  Mr.  President,  why  Mr.  Cassatt,  representing  the 
Pennsylvania  Railroad,  might  favor  this  kind  of  legislation.  He  repre- 
sents a  railroad  that  covers  the  heart  of  the  country;  a  railroad  so 
situated  and  so  powerful,  having  so  many  advantages,  that  it  could 
grow  inordinately  rich  on  what  might  destroy  other  railroad  properties. 
I  do  not  know  of  anybody  else  equally  fortunately  situated.  If  any- 
body else  is  so  equally  fortunately  situated,  it  is  Mr.  Mellen  and  his 
road;  and  they  are  both  in  favor  of  this  kind  of  legislation. 


REPRESENTATIVE   ADAMS   ON   THE   EXECUTIVE1 

Mr.  ADAMS.  Mr.  Speaker,  the  gentleman  from  Mississippi  [Mr. 
Williams]  has  told  the  truth,  and  it  is  idle  to  disguise  it,  that  the  Presi- 
dent of  the  United  States  and  the  Speaker  of  this  House  have  agreed 
with  reference  to  the  bill  which  is  now  before  you.  The  gentleman  from 
Mississippi,  with  his  characteristic  intellectual  integrity,  manifested  in 
this  instance,  as  it  has  been  in  many  others,  accepts  the  situation,  says 
it  is  a  good  bill,  and  makes  no  complaint  because  the  President  of  the 
United  States  and  the  Speaker  of  this  House  agree  with  him. 

Now,  Mr.  Speaker,  what  has  happened?  The  Secretary  of  Agricul- 
ture sent  a  committee  to  Chicago  to  investigate  the  conditions  under 
which  the  packing-house  industry  of  that  city  was  carried  on.  That 
committee  submitted  an  elaborate  and  complete  report,  covering  every 

1  Congr.  Record,  June  19,  1906. 


THE   EXECUTIVE   AND    CONGRESS  59 

building,  covering  every  room  —  a  report  which  was  simple,  direct,  con- 
cise, evidently  prepared  without  passion  and  without  prejudice,  telling 
the  exact  truth;  and  the  exact  truth  was  that  in  the  great  center  of  the 
meat-handling  industry  of  the  United  States  conditions  existed  which 
threatened  the  character  and  integrity  of  the  meat  products  of  the 
United  States.  That  report  was  submitted  to  the  President.  In  order 
to  confirm  it,  or  not  confirm  it,  he  selected  two  men  in  whom  he  had 
confidence,  who  did  not  claim  to  be  experts,  who  were  ordinary,  intelli- 
gent citizens,  having  the  judgment  of  ordinary,  intelligent  citizens, 
and  sent  them  there  to  make  such  an  investigation  as  you  and  I  would 
make.  The  report  of  those  two  gentlemen  confirmed  the  report 
that  was  made  to  the  Secretary  of  Agriculture.  The  President 
of  the  United  States,  understanding,  as  you  and  I  understand,  that 
meat  is  something  which  goes  into  the  consumption  of  every  family, 
knowing,  as  you  and  I  know,  that  the  great  meat  industry  of  the  United 
States  exports  to  foreign  lands  $200,000,000  worth  of  meat  a  year, 
knowing  the  importance  of  this  subject,  communicated  the  facts  to 
Congress.  Why?  In  order  that  public  sentiment  might  be  stirred  all 
over  the  United  States,  and  that  the  legislative  judgment  of  this  body 
and  the  other  across  the  Capitol  might  be  stirred  to  enact  into  law  a  pro- 
vision for  governmental  inspection,  which  should  insure  the  healthful- 
ness,  the  wholesomeness,  the  cleanliness,  the  purity,  and  perfection  of 
American  meat  products.  [Applause.]  That  is  all  there  is  of  it. 

A  bill  passed  the  Senate,  passed  without  consideration,  a  provision 
conceived  by  a  gentleman  who  wished  to  do  good  things,  who  was  moved 
by  a  good  purpose.  That  bill  was  imperfect.  It  came  over  here  and 
was  sent  to  the  Committee  on  Agriculture.  Hearings  were  had.  Repre- 
sentatives of  the  packers  were  heard ;  representatives  of  the  Agricultural 
Department  were  heard;  the  men  who  went  to  Chicago  to  investigate 
were  heard.  The  committee  gave  ample  consideration  to  the  repre- 
sentatives of  all  these  interests;  and  I  want  to  say  to  you,  gentlemen, 
with  reference  to  the  truth  of  the  charges  which  have  been  made,  that 
when  Mr.  Wilson,  the  representative  of  the  packers  of  Chicago,  who 
came  there  and  very  modestly  and  very  clearly  stated  what  he  deemed 
the  conditions  to  be  in  Chicago,  and  then,  in  response  to  questions,  ad- 
mitted that  every  solitary  conclusion  of  Mr.  Neill  and  Mr.  Reynolds 
in  their  report  should  be  carried  out,  he  confessed  judgment  on  the  essen- 
tial points  in  this  controversy.  [Applause.]  And  when  the  board  of 
health  of  Chicago  sent  their  representative,  under  the  spur  of  public 
feeling  that  has  been  applied  in  this  case,  into  the  packing- house  district 
and  started  to  work  there,  in  nearly  every  establishment  the  truth  of 
the  charges  was  again  sustained.  There  is  no  question  about  it.  The 
committee  took  up  that  bill  in  the  utmost  good  faith,  every  man  actuated 
with  the  desire  to  draw  and  present  to  this  House  a  measure  which 
should  compel  rigid  and,  in  so  far  as  human  judgment  could  make  it, 


60  AMERICAN   FEDERAL   GOVERNMENT 

perfect  inspection  of  meat,  to  give  us  a  bill  which  should  not  only  be 
just  to  the  producing  interests  of  the  United  States,  but  also  fair  and 
just  to  those  great  manufacturing  interests  which  are  handling  hun- 
dreds of  millions  of  dollars'  worth  of  the  meat  products  of  this  country. 
The  committee  worked  in  absolute  good  faith.  They  have  no  pride  of 
opinion.  There  was  but  one  purpose  among  the  members  of  that  com- 
mittee and  that  was  to  make  the  bill  right.  I  disagreed  with  the  majority 
in  the  first  report  which  came  here,  providing  for  a  court  review.  I  do  not 
believe  that  every  time  the  Congress  of  the  United  States  draws  a  law, 
under  the  power  which  it  has  over  interstate  commerce,  to  regulate  some 
particular  kind  of  business,  we  must  provide  in  that  particular  bill  for 
some  particular  kind  of  court  review.  That  provision  has  gone  out  of  the 
bill. 

It  is  true  that  I  have  consulted  with  the  President.  It  is  true  that  the 
Speaker  of  this  House  has  taken  hold  of  this  thing  as  a  Member  of  the 
House  and  as  an  American  citizen,  and  has  worked  with  Mr.  Roosevelt. 
Neither  has  shown  any  pride  of  opinion,  but  a  simple  desire  to  yield 
non-essentials  in  order  that  the  executive  branch  of  the  Government  and 
the  legislative  branch  of  the  Government  and  the  American  people,  all 
of  whom  want  a  good  law,  may  have  it.  [Applause.] 

SENATOR   RAYNER   ON   CONGRESS  AND   THE 
EXECUTIVE  1 

WE  come  now  to  another  and  a  different  scene.  The  pivotal  point 
around  which  the  railroad  rate  bill  revolved  for  months  in  this  Chamber 
was  the  character  of  review  that  the  courts  were  to  assume  under  its 
provisions.  One  side  claimed  that  the  courts  should  only  exercise  a 
constitutional  review  under  the  fifth  amendment;  the  other  side  advo- 
cated a  full  statutory  review  from  the  proceedings  of  the  Interstate 
Commerce  Commission. 

The  President  came  into  the  game  early.  We  realize  that  no  fight 
is  thoroughly  equipped  upon  this  floor  unless  the  President  is  in  it.  He 
longs  for  a  fight  as  the  hart  panteth  after  the  water  brooks.  It  was  a 
match  to  the  finish  between  the  senior  Senator  from  Rhode  Island  and 
the  President.  They  stood  respectively  in  the  foremost  ranks  of  their 
profession.  The  Senator  from  Rhode  Island  was  an  expert  in  the  ring 
and  had  upon  many  an  occasion  in  this  arena  been  awarded  the  victor's 
prize.  The  President,  also,  was  a  dean  in  the  art.  and  had  reached  a 
degree  of  eminence  in  his  calling  that  made  him  a  dangerous  foe  to  en- 
counter. It  was  a  most  interesting  spectacle.  The  Senator  from  Rhode 
Island  time  and  time  again  went  down  beneath  the  ponderous  blows  of 
his  opponent,  but  each  time  he  arose  like  Aurora,  the  goddess  of  the 

1  Congr.  Record,  Jan.  31,  1907.     See  another  part  of  the  speech,  supra. 


THE   EXECUTIVE   AND    CONGRESS  61 

dawn,  arose  from  her  chariot  in  the  sea.  At  length  science  commenced 
to  tell.  The  Senator  from  Rhode  Island  had  reserved  his  strength  for 
the  last  encounter.  The  President  had  changed  his  tactics  so  often  that 
he  became  exhausted  and  appealed  for  help.  One  morning  the  Senator 
from  Rhode  Island  appeared  in  this  Chamber  with  a  radiant  smile. 
The  President  had  never  penetrated  the  meaning  of  that  smile.  It  had 
lured  him  like  the  sirens  lure  their  victims  to  destruction.  The  smile 
indicated  that  the  tournament  was  over.  The  Senator  from  South 
Carolina  looked  upon  the  other  side  of  the  Chamber  for  his  promised 
troops,  but  they  had  fled  and  vanished.  An  ex-Senator  from  New 
Hampshire  lay  dead  upon  the  field.  The  President  lay  entangled  in 
his  armor,  and  his  breastplate  and  his  battle-ax  were  shattered,  and 
above  him  waved  the  pennant  of  Rhode  Island,  and  the  Senator  from 
Rhode  Island  smiled.  If  the  President  had  only  kept  out  of  this  fray 
it  would  have  assumed  an  entirely  different  form  and  ended  in  an  en- 
tirely different  way.  It  was  impossible,  however,  for  him  to  do  this. 
He  could  not  remain  quiescent  in  the  White  House  and  observe  a  great 
struggle  like  this  progressing  without  taking  part  in  it.  So  that  he  got 
into  it,  it  really  did  not  make  much  difference  to  him  upon  which  side 
he  was  enlisted.  One  day  he  was  upon  one  side  and  the  next  day  he 
was  upon  the  other. 

Here  we  were  day  after  day  struggling  with  questions  of  constitu- 
tional law,  as  if  we  really  had  anything  to  do  with  their  settlement, 
laboring  under  the  vain  delusion  that  we  had  the  right  to  legislate ;  that 
we  were  an  independent  branch  of  the  Government;  that  we  were  one 
department,  and  the  Executive  another,  each  with  its  separate  and  well- 
defined  distinctions,  imagining  these  things,  and  following  a  vision  and 
a  mirage,  while  the  President  was  at  work  dominating  the  legislative 
will,  interposing  his  offices  into  the  law-making  power,  assuming  legisla- 
tive rights  to  a  greater  extent  than  he  could  possibly  do  if  he  were  sitting 
here  as  a  member  of  this  body;  dismembering  the  Constitution,  and 
exercising  precisely  and  identically  the  same  power  and  control  as  if 
the  Constitution  had  declared  that  Congress  shall  pass  no  law  without 
the  consent  of  the  President;  adopting  a  system  that  practically  blends 
and  unites  legislative  and  executive  functions,  a  system  that  prevailed 
in  many  of  the  ancient  governments  that  have  forever  gone  to  ruin,  and 
which  to-day  still  obtains  in  other  governments,  the  rebellious  protests  of 
whose  subjects  are  echoing  over  the  earth,  and  whose  tottering  fabrics 
I  hope  are  on  the  rapid  road  to  dissolution. 

If  I  were  called  upon  to  select  the  most  wonderful  exhibition  of  the 
President's  power  that  has  occurred  within  my  experience,  I  would 
take  our  action  upon  the  canal  bill  at  the  close  of  the  last  session  of 
Congress.  This  was  an  achievement  in  which  his  consummate  skill  in 
propelling  legislation  appeared  in  its  most  perfect  proportions.  We  had 
all  heard  the  argument  of  the  junior  Senator  from  South  Dakota  in  favor 


62  AMERICAN   FEDERAL   GOVERNMENT 

of  a  sea- level  canal,  and  its  demonstrative  facts  and  unanswerable  logic 
seemed  to  carry  conviction  with  its  presentation. 

All  at  once  a  wireless  message  came  from  the  White  House.  The 
President  had  determined  that  there  was  either  to  be  a  lock  canal  or 
that  there  should  be  no  legislation  upon  the  subject.  I  can  never  forget 
the  day  upon  which  the  vote  was  taken.  The  biography  of  the  Presi- 
dent will  perhaps  some  day  be  written  by  the  senior  Senator  from  Massa- 
chusetts. MacCaulay  said  that  if  Boswell  had  not  been  the  greatest  fool 
who  ever  lived,  he  could  not  have  given  to  the  world  the  greatest  biog- 
raphy that  was  ever  written.  This  will  not  apply  to  the  Senator  from 
Massachusetts.  He  wields  a  master's  hand  in  biographical  literature, 
and  when  he  writes  this  biography  I  hope  that  he  will  dwell  with  glow- 
ing emphasis  upon  this  surpassing  accomplishment.  Napoleon  at 
Austerlitz  never  turned  the  scales  of  fortune  with  greater  celerity  of 
movement  or  audacity  of  assault  than  the  President  threw  into  this 
maneuver.  How  was  it  done?  What  subtle  force  did  he  employ  in  the 
execution  of  his  plan  ?  The  day  the  vote  was  taken  this  Chamber  pre- 
sented a  most  peculiar  aspect.  The  air  seemed  laden  with  some  nar- 
cotic wafting  its  somniferous  essence  over  this  body.  When  the  roll 
was  called  the  clerk  could  hardly  hear  the  responses  upon  the  side  of 
the  lock  canal,  and  as  the  answers  came  they  came  in  whispered  accents 
and  with  bated  breath.  The  charm  had  done  its  work,  the  deadly  vapor 
had  benumbed  our  faculties  and  made  us  pliant  slaves  to  the  master 
will.  Even  the  senior  Senator  from  Ohio  who,  when  his  convictions 
are  aroused,  has  often  on  this  floor  displayed  the  Nemean  lion's  nerve, 
fell  a  victim  to  the  magic  power  of  the  love  charm  that  had  been  con- 
cocted at  the  laboratory  of  the  White  House.  I  would  like  the  Secre- 
tary to  read  a  few  of  the  pathetic  and  funereal  passages  of  the  Senator's 
deliverance  upon  this  occasion. 

It  shows  how  the  dominating  spirit  of  the  President  can  ride  the 
whirlwind  when  he  has  made  up  his  mind  to  legislate,  and  how  in  ab- 
solute defiance  of  the  laws  of  nature  he  can  produce  a  senatorial  vacuum 
beneath  the  sweep  of  his  mighty  genius. 

Mr.  FORAKER.  Mr.  President,  I  do  not  care  to  discuss  this  question  beyond 
saying  something  similar  to  that  which  has  just  been  said  by  the  Senator  from 
West  Virginia. 

"I  remember,  when  the  proposition  was  before  the  Senate  some  time  ago,  as 
to  whether  we  should  adopt  the  Panama  or  the  Nicaragua  route,  I  was  greatly 
influenced  in  favor  of  the  Panama  route,  as  no  doubt  many  other  Senators  were 
by  the  fact  stated  at  page  n,  according  to  the  print  I  have  before  me,  of  Report 
783,  part  2,  Fifty-seventh  Congress,  first  session,  where  the  Interoceanic  Canal 
Committee,  or  a  majority  at  least  of  its  members  — 

Mr.  KITTREDGE.    A  minority. 

Mr.  FORAKER.  Yes;  it  was  a  minority  report  I  was  looking  to  see.  A 
minority  of  the  members  of  that  committee  set  forth  the  advantages  of  the 


THE   EXECUTIVE  AND   CONGRESS  63 

Panama  route,  as  contrasted  with  the  Nicaragua  route,  and  then,  after  they  had 
enumerated  nine  specific  advantages,  they  added  the  following : 

"10.  It  is  recognized  that  a  sea-level  canal  is  the  ideal.  The  Panama 
Canal  may  be  either  constructed  as  a  sea-level  canal  or  may  be  subsequently 
converted  into  one.  On  the  other  hand,  no  sea-level  canal  will  ever  be  possible 
on  the  Nicaragua  route." 

Now,  like  the  Senator  from  West  Virginia,  I  had  remained  of  the  idea  ever 
since  until  within  the  last  two  or  three  months,  when  this  discussion  was  com- 
menced, that  it  was  the  part  of  wisdom  to  build  a  sea-level  canal,  and  I  supposed 
that  would  be  the  result  of  the  investigations  that  were  being  made  by  the  com- 
mittee. I  did  not  have  time,  because  occupied  with  other  work,  to  follow  the 
hearings  before  that  committee  and  read  the  testimony  as  it  was  taken  and 
printed  from  day  to  day  for  the  benefit  of  the  committee  and  for  the  benefit  of 
Senators. 

I  was,  therefore,  somewhat  unprepared  when,  a  few  days  ago,  it  was  insisted 
that  we  should  settle  this  matter  at  this  time  by  voting  upon  it.  I  then  made  a 
request  that  there  might  be  further  time  than  was  proposed  to  be  given  us  in 
order  that  we  might  investigate  this  subject  and  read  the  testimony  to  obtain 
further  information. 

But  we  are  to  vote,  and  every  Senator  must  speak  for  himself  in  a  few  minutes. 
There  is  no  time  to  investigate  further,  and  I  propose,  although  with  some  mis- 
giving as  to  whether  that  is  the  wisest  thing  to  do,  to  follow  what  has  been  in- 
dicated as  the  preference  of  those  who  have  the  greatest  responsibility  with 
respect  to  this  canal. 

As  I  have  intimated  before  in  reference  to  this  matter,  I  did  not  take  the  floor 
for  the  purpose  of  discussing  it.  I  took  the  floor  only  to  express  the  doubt  I 
have  and  the  regret  I  have  that  I  can  not  vote  as  I  propose  to  vote  with  greater 
satisfaction  to  myself. 


REPRESENTATIVE   JOHN   SHARP   WILLIAMS'   REMARKS1 

[The  House  being  in  the  Committee  of  the  Whole  House  on  the  state  of  the 
Union  and  having  under  consideration  the  bill  (H.  R.  12320)  making  appropria- 
tions to  supply  urgent  deficiencies  in  the  appropriations  for  the  fiscal  year.] 

Mr.  WILLIAMS  said: 

Mr.  Chairman:  I  have  no  idea  of  occupying  the  time  of  the  House 
for  thirty  minutes.  I  do  desire,  however,  for  five  or  six  minutes  to  ad- 
dress myself  to  this  proposition.  It  seems  to  me  that  the  gentleman  in 
charge  of  this  bill  has  made  a  mistake  in  his  estimate  of  what  an  estimate 
is.  Some  time  ago  we  were  faced  with  an  emergency  bill  to  provide  six- 
teen and  one-half  millions  of  dollars  for  the  prosecution  of  the  work  on 
the  Panama  Canal.  The  House  then  expressed  to  the  Panama  Com- 
mission and  to  the  country  its  desire  that  hereafter  appropriations  for 
the  construction  of  the  Panama  Canal  should  take  the  usual  course. 
If  there  were  any  necessdy  for  appropriating  the  amount  of  this  bill, 

1  Congr.  Record,  Jan.  22,  1906. 


64  AMERICAN  FEDERAL   GOVERNMENT 

that  necessity  could  have  been  met  by  introducing  into  this  House  a 
bill  duly  reported  from  a  committee,  duly  passed  upon  in  a  regular  way, 
or  else  by  a  provision  on  a  regular  appropriation  bill. 

It  seems  to  me  that  the  most  hopeless  thing  about  us  individually  and 
collectively  in  attending  to  our  duties  in  Washington  as  a  legislative 
body  is  the  contemplation  of  the  impotency  of  the  legislative  branch  of 
the  Federal  Government  in  connection  with  all  sorts  of  matters.  We 
are  led  around  by  the  nose  —  with  rings  in  our  noses  —  by  chiefs  of 
bureaus,  chiefs  of  divisions,  and  heads  of  departments,  and  whenever 
we  give  notice  to  the  country,  after  voting  down  a  part  of  an  appropria- 
tion in  an  emergency  bill,  that  we  would  demand  the  regular  order, 
gentlemen  come  in  later  on,  out  of  the  regular  order  once  more,  this 
time  in  the  phase  of  a  deficiency  bill,  asking  that  what  the  House  re- 
fused to  do  irregularly  shall  still  be  done  irregularly.  Now,  the  gentle- 
man speaks  about  the  estimates  having  been  given  to  the  committee, 
to  the  House,  and  to  the  country.  No  estimate,  in  the  true  sense  of  the 
word,  has  been  given  at  all.  In  the  regular  routine  of  business  an  esti- 
mate means  much  more  than  what  this  committee  brings  to  this  House 
now.  An  estimate  comes  from  the  Department.  It  comes  printed.  It 
comes  long  in  advance.  It  comes  in  time  to  be  ready  for  the  study  and 
consideration  of  each  Member  of  this  House  and  for  the  study  and 
consideration  of  the  country,  in  order  that  the  country  may  influence 
this  House. 

Mr.  LITTAUER.     Will  the  gentleman  permit  — 

Mr.  WILLIAMS.  One  moment.  And  the  only  thing  which  comes 
before  us  here  now  is  a  lot  of  detailed  statements  furnished  to  this 
committee,  never  furnished  to  this  House  in  any  proper  manner,  no 
hearings  that  could  be  followed  by  the  country,  no  opportunity  for  the 
country  outside  of  this  House  to  consider  the  question  before  them 
and  to  influence  the  House.  This  is  a  popular  government,  or  it  is 
supposed  to  be.  It  is  a  government  of  the  people,  through  their  repre- 
sentatives, and  not  a  government  of  committees,  not  a  government  of 
representatives  merely,  but  a  government  of  the  people  by  the  people, 
through  their  representatives  and  through  their  committees.  Now  I  will 
yield  to  the  gentleman. 

Mr.  LI-TTAUER.  Does  not  the  gentleman  know  that  regular  estimates, 
as  full  as  estimates  usually  submitted  to  the  House,  have  been  forwarded 
by  the  Secretary  of  War,  through  the  Secretary  of  the  Treasury,  and  they 
are  before  the  committee  and  before  the  House  —  a  regular  document 
of  estimates? 

Mr.  WILLIAMS.     I  do  not  know  that. 

Mr.  LITTAUER.  And  that  the  hearings  were  held  in  the  usual  way 
and  that  the  published  hearings  are  now  to  be  had  by  anyone  who  asks 
for  them? 

Mr.  WILLIAMS.     Yes;   "now  to  be  had,"  but  not  to  be  had  a  sum- 


THE  EXECUTIVE  AND   CONGRESS  65 

cient  length  of  time  before  this  question  was  brought  to  the  consideration 
of  the  House  for  the  country  to  determine  for  itself  the  wisdom  or  un- 
wisdom of  this  policy.  I  know  a  so-called  "detailed  statement"  was 
submitted  to  this  committee,  and  I  do  know  that  this  committee  at- 
tempted to  make  a  detailed  appropriation  to  this  House.  Let  us  see 
how  detailed  and  how  specific  that  appropriation  is.  Let  me  read  it, 
Mr.  Chairman:  "For  miscellaneous  material  purchased  in  the  United 
States,  $1,000,000."  How  miscellaneous?  What  material?  What 
purchases?  "For  miscellaneous  purchases  on  the  Isthmus,  $400,000." 
That  might  be  held  to  be  comparatively  specific  except  for  the  language 
put  in  there  later,  "and  miscellaneous  expenditures."  That  will  be 
the  language  of  the  law  when  it  goes  out.  Will  you  tell  me  what  possible 
devotion  of  money  to  any  possible  purpose  is  not  covered  by  the  lan- 
guage "and  miscellaneous  expenditures?" 


PRESIDENT   CLEVELAND   ON   THE   TRANSMISSION   OF 
OFFICIAL    PAPERS 

[It  has  often  been  a  matter  of  difference  of  opinion  as  to  how  far  executive 
departments  are  obliged  to  furnish  information  and  documentary  material  to 
Congress.  The  Senate  has  made  it  a  practice  to  request  information  of  the 
Department  of  State  upon  matters  of  foreign  affairs  only  as  far  as  the  public 
interests  will  permit  the  giving  of  such  information ;  but  in  the  case  of  the  other 
departments  more  direct  demands  for  information  are  made  by  Congress. 
Ordinarily  the  departments,  of  course,  are  ready  to  give  a  full  account  of  their 
affairs  for  the  use  of  Congress,  but  occasions  have  arisen  when  the  giving  of 
specific  information  was  refused.  An  interesting  controversy  of  this  kind  took 
place  during  the  first  administration  of  President  Cleveland  when  the  Senate 
had  demanded  the  transmission  of  the  papers  connected  with  the  dismissal  of  a 
certain  federal  official.  As  the  Tenure  of  Office  Act  had  not  as  yet  been  re- 
pealed, although  it  had  been  amended  during  the  administration  of  Grant,  the 
Senate  still  claimed  that  its  consent  to  the  dismissal  of  an  official  was  necessary. 
The  President  refused  to  transmit  the  papers,  and  the  Tenure  of  Office  Act 
was  shortly  after  repealed.  The  following  extract  is  from  a  special  message 
(March  i,  1886)  of  President  Cleveland  giving  the  reasons  for  his  refusal  to 
comply  with  the  request  of  the  Senate.] 

UPON  this  resolution  and  the  answer  thereto  the  issue  is  thus  stated 
by  the  Committee  on  the  Judiciary  at  the  outset  of  the  report : 

The  important  question,  then,  is  whether  it  is  within  the  constitutional  com- 
petence of  either  house  of  Congress  to  have  access  to  the  official  papers  and 
documents  in  the  various  public  offices  of  the  United  States  created  by  laws 
enacted  by  themselves. 

I  do  not  suppose  that  the  "public  offices  of  the  United  States"  are 
regulated  or  controlled  in  their  relations  to  either  house  of  Congress  by 


66  AMERICAN  FEDERAL   GOVERNMENT 

the  fact  that  they  were  "created  by  laws  enacted  by  themselves."  It 
must  be  that  these  instrumentalities  were  created  for  the  benefit  of  the 
people  and  to  answer  the  general  purposes  of  government  under  the  Con- 
stitution and  the  laws,  and  that  they  are  unincumbered  by  any  lien  in 
favor  of  either  branch  of  Congress  growing  out  of  their  construction  and 
unembarrassed  by  any  obligation  to  the  Senate  as  the  price  of  their 
creation. 

The  complaint  of  the  committee,  that  access  to  official  papers  in  the 
public  offices  is  denied  the  Senate,  is  met  by  the  statement  that  at  no 
time  has  it  been  the  disposition  or  the  intention  of  the  President  or  any 
Department  of  the  executive  branch  of  the  government  to  withhold  from 
the  Senate  official  documents  or  papers  filed  in  any  of  the  public  offices. 
While  it  is  by  no  means  conceded  that  the  Senate  has  the  right,  in  any 
case,  to  review  the  act  of  the  Executive  in  removing  or  suspending  a 
public  officer  upon  official  documents  or  otherwise,  it  is  considered  that 
documents  and  papers  of  that  nature  should,  because  they  are  official,  be 
freely  transmitted  to  the  Senate  upon  its  demand,  trusting  the  use  of  the 
same  for  proper  and  legitimate  purposes  to  the  good  faith  of  that  body. 
And  though  no  such  paper  or  document  has  been  specifically  upon  the 
Departments,  yet,  as  often  as  they  were  found  in  the  public  offices,  they 
have  been  furnished  in  answer  to  such  applications. 

The  letter  of  the  Attorney- General  in  response  to  the  resolution  of  the 
Senate,  in  the  particular  case  mentioned  in  the  committee's  report,  was 
written  at  my  suggestion  and  by  my  direction.  There  have  been  no  official 
papers  or  documents  filed  in  this  Department  relating  to  the  case,  within 
the  period  specified  in  the  resolution.  The  letter  was  intended,  by  its 
description  of  the  papers  and  documents  remaining  in  the  custody  of  the 
Department,  to  convey  the  idea  that  they  were  not  official ;  and  it  was  as- 
assumed  that  the  resolution  called  for  information,  papers,  .and  docu- 
ments of  the  same  character  as  were  required  by  the  requests  and  de- 
mands which  preceded  it. 

Everything  that  had  been  written  or  done  in  behalf  of  the  Senate, 
from  the  beginning,  pointed  to  all  letters  and  papers  of  a  private  and  un- 
official nature  as  the  objects  of  search,  if  they  were  to  be  found  in  the 
Departments,  and  provided  that  they  had  been  presented  to  the  Execu- 
tive with  a  view  to  their  consideration  upon  the  question  of  suspension 
from  office. 

Against  the  transmission  of  such  papers  and  documents  I  have  inter- 
posed my  advice  and  direction.  This  has  not  been  done,  as  is  suggested 
in  the  committee's  report,  upon  the  assumption  on  my  part  that  the  At- 
torney-General or  any  other  head  of  a  Department  "is  the  servant  of 
the  President,  and  is  to  give  or  withhold  copies  or  documents  in  his  office 
according  to  the  will  of  the  Executive  and  not  otherwise,"  but  because  I 
regard  the  papers  and  documents  withheld  and  addressed  to  me,  or  in- 
tended for  my  use  and  action,  purely  unofficial  and  private,  not  infre- 


THE   EXECUTIVE  AND   CONGRESS  67 

quently  confidential,  and  having  reference  to  the  performance  of  a  duty 
exclusively  mine.  I  consider  them  in  no  proper  sense  as  upon  the  files 
of  the  Department,  but  as  deposited  there  for  my  convenience,  remain- 
ing still  completely  under  my  control.  I  suppose  if  I  desired  to  take  them 
into  my  custody,  I  might  do  so  with  entire  propriety,  and  if  I  saw  fit  to 
destroy  them,  no  one  could  complain. 

Even  the  committee  in  its  report  appears  to  concede  that  there  may  be, 
with  the  President  or  in  the  Departments,  papers  and  documents  which, 
on  account  of  their  unofficial  character,  are  not  subject  to  the  inspection 
of  the  Congress.  A  reference  in  the  report  to  instances  where  the  House 
of  Representatives  ought  not  to  succeed  in  a  call  for  the  production  of 
papers  is  immediately  followed  by  this  statement : 

The  committee  feels  authorized  to  state,  after  a  somewhat  careful  research, 
that  within  the  foregoing  limits  there  is  scarcely  in  the  history  of  this  govern- 
ment, until  now,  any  instance  of  a  refusal  by  a  head  of  a  Department,  or  even 
of  the  President  himself,  to  communicate  official  facts  and  information  as  dis- 
tinguished from  private  and  unofficial  papers,  motions,  views,  reasons,  and 
opinions,  to  either  house  of  Congress  when  unconditionally  demanded. 


DISCUSSION  OF  REQUESTS  FOR  INFORMATION1 

MR.  FORAKER.  Mr.  President,  I  desire  to  call  up,  if  I  am  in  order  to 
do  so,  resolution  No.  180. 

The  VICE-PRESIDENT.  The  Senator  from  Ohio  calls  up  for  considera- 
tion the  resolution  named  by  him,  which  will  be  read. 

The  Secretary  read  the  resolution  submitted  by  Mr.  Penrose  on  the 
3d  instant,  as  follows: 

Resolved,  That  the  President  be  requested  to  communicate  to  the  Senate,  if 
not  incompatible  with  the  public  interests,  full  information  bearing  upon  the 
recent  order  dismissing  from  the  military  service  of  the  United  States  three 
companies  of  the  Twenty-fifth  Regiment  of  Infantry,  United  States  troops 
(colored). 

The  VICE-PRESIDENT.  The  question  is  on  the  adoption  of  the  reso- 
lution of  the  Senator  from  Pennsylvania. 

Mr.  SPOONER.  Mr.  President,  I  am  opposed  to  the  resolution  offered 
by  the  Senator  from  Pennsylvania.  My  opposition  to  it  is  based  entirely 
upon  the  form  of  it.  This  resolution  does  not,  so  far  as  the  subject-matter 
goes,  fall  within  the  class  of  inquiries  which  the  Senate  has  ever  been 
accustomed  to  address  to  the  President.  It  implies  on  its  face,  Mr. 
President,  a  doubt  here  which  I  think  does  not  exist ;  as  to  whether  the 
Senate  is  of  right  entitled  to  all  the  facts  relating  to  the  discharge  of  the 

1  Congr.  Record,  Dec.  6,  1906. 


68  AMERICAN  FEDERAL   GOVERNMENT 

three  named  companies  or  not.  Always  the  Senate,  in  passing  resolu- 
tions of  inquiry  addressed  to  Cabinet  officers,  except  the  Secretary  of 
State,  make  them  in  form  of  direction,  not  request.  It  rarely  has  happened 
that  a  request  has  been  addressed  to  any  Cabinet  officer  where  foreign 
relations  were  involved.  Where  such  a  resolution  has  been  adopted  it  has 
been  addressed  to  the  President,  with  the  qualification  that  he  is  re- 
quested to  furnish  the  information  only  so  far  as,  in  his  judgment,  the 
transmission  of  it  is  compatible  with  the  public  interest. 

There  are  reasons  for  that,  Mr.  President.  The  State  Department 
stands  upon  an  entirely  different  basis  as  to  the  Congress  from  the  other 
Departments.  The  conduct  of  our  foreign  relations  is  vested  by  the 
Constitution  in  the  President.  It  would  not  be  admissible  at  all  that  either 
House  should  have  the  power  to  force  from  the  Secretary  of  State  informa- 
tion connected  with  the  negotiation  of  treaties,  communications  from 
foreign  governments,  and  a  variety  of  matters  which,  if  made  public, 
would  result  in  very  great  harm  in  our  foreign  relations  —  matters  so  far 
within  the  control  of  the  President  that  it  has  always  been  the  practice, 
and  it  always  will  be  the  practice,  to  recognize  the  fact  that  there  is  of 
necessity  information  which  it  may  not  be  compatible  with  the  public 
interest  should  be  transmitted  to  Congress  —  to  the  Senate  or  to  the 
House. 

There  are  other  cases,  not  especially  confined,  Mr.  President,  to  the 
State  Department,  or  to  foreign  relations,  where  the  President  would  be 
at  liberty  obviously  to  decline  to  transmit  information  to  Congress  or  to 
either  House  of  Congress.  Of  course,  in  time  of  war,  the  President  being 
Commander  in  Chief  of  the  Army  and  Navy,  could  not,  and  the  War 
Department  or  the  Navy  Department  could  not,  be  required  by  either 
House  to  transmit  plans  of  campaign  or  orders  issued  as  to  the  destina- 
tion of  ships,  or  anything  relating  to  the  strategy  of  war,  the  public 
knowledge  of  which  getting  to  the  enemy  would  defeat  the  Government 
and  its  plans  and  enure  to  the  benefit  of  an  enemy. 

There  are  still  other  cases.  The  Department  of  Justice  would  not  be 
expected  to  transmit  to  either  House  the  result  of  its  investigations  upon 
which  some  one  had  been  indicted,  and  lay  bare  to  the  defendant  the  case 
of  the  Government.  The  confidential  investigations  in  various  depart- 
ments of  the  Government  should  be,  and  have  always  been,  treated  by 
both  Houses  as  confidential,  and  the  President  is  entirely  at  liberty  to 
permit  by  the  Cabinet  officer  to  whom  the  inquiry  is  addressed  as  much 
or  as  little  information  regarding  them  as  he  might  see  fit.  I  have  no 
doubt  the  President  would  transmit  everything  upon  this  subject.  My 
objection  is  to  the  form  of  the  resolution.  I  think  we  ought  to  maintain 
the  uniform  practice  upon  the  subject.  I  do  not  think,  as  to  a  matter  upon 
which  the  Senate  clearly  has  a  right  to  be  fully  advised,  it  should  depart 
from  the  usual  form  of  directing  the  transmission  by  the  Secretary  of 
War  or  the  Secretary  of  the  Navy  or  the  Secretary  of  the  Interior,  to  adopt 


THE   EXECUTIVE  AND   CONGRESS  69 

a  resolution  of  request  of  the  President,  bearing  upon  its  face  a  recogni- 
tion of  the  fact  that  he  is  at  liberty  to  withhold  the  information  or  to  trans- 
mit such  part  of  it  as  he  shall  see  fit. 

Mr.  President,  in  time  of  peace  as  to  matters  relating  to  the  organiza- 
tion and  the  administration  of  the  Army  there  can  be  no  secrecy.  It  is 
purely  domestic  public  business,  as  to  which  the  Congress  has  a  right  to 
know.  I  should  be  very  much  disappointed  if  in  a  matter  of  this  kind  the 
Senate  should  address  the  inquiry  to  the  President,  coupled,  as  it  must 
be,  with  the  suggestion  that  we  doubt  our  right  to  the  information.  I 
think  it  is  a  bad  precedent  to  establish.  In  such  matters  I  think  we  ought 
to  maintain  the  practice  which,  so  far  as  I  remember,  hitherto  has  been 
unbroken.  Therefore  I  am  opposed  to  the  form  of  the  resolution  of  the 
Senator  from  Pennsylvania.  I  am  in  favor  of  the  form  of  the  resolution 
of  the  Senator  from  Ohio. 

Mr.  FORAKER.  Mr.  President,  I  desire  only  to  say  a  word  of  the  same 
general  character  as  that  which  has  been  spoken  by  the  Senator  from 
Wisconsin  [Mr.  Spooner].  My  objection  to  the  resolution  offered  on 
yesterday  by  the  Senator  from  Wyoming  [Mr.  Warren]  was  that  under 
it  the  President  would  have  a  right  to  withhold  information  particularly 
called  for  by  the  resolution  I  had  offered.  Senators  will  observe  when 
they  come  to  look  at  that  resolution  that  nothing  is  called  for  except  only 
that  which  is  specifically  described,  and  that  it  is  all  of  a  character  such  as 
the  Senate  is  clearly  entitled  to.  No  one  has  the  right  to  withhold  it  from 
the  knowledge  of  the  Senate  if  the  Senate  asks  for  it.  That  was  the  only 
objection  I  had  to  having  my  resolution  incorporated  with  the  resolution 
offered  by  the  Senator  from  Pennsylvania  in  a  resolution  such  as  was 
offered  by  the  Senator  from  Wyoming  [Mr.  Warren]  on  yesterday.  The 
same  objection,  of  course,  lies  to  the  suggestion  which  was  made,  also, 
by  the  Senator  from  Pennsylvania  that  we  might  unite  the  resolutions. 
If  the  Senate  sees  fit  to  adopt  it,  I  have  no. objection  to  the  resolution 
offered  by  the  Senator  from  Pennsylvania ;  but  I  shall  insist  in  any  con- 
tingency upon  the  consideration  of  my  own  resolution  as  calling  for  in- 
formation we  are  clearly  entitled  to  without  anybody  giving  his  judgment 
whether  or  not  it  is  our  right  to  have  it. 

Mr.  LODGE.  Mr.  President,  on  the  matter  of  precedents  I  have  only 
had  a  moment  to  look  back.  My  memory  was  that  we  had  sent  many 
inquiries  to  the  President  which  did  not  refer  to  foreign  relations.  On 
looking  hastily  back  through  a  book  from  the  Secretary's  desk,  I  find  in 
the  Fifty-ninth  Congress  the  following  resolution,  offered  by  the  Senator 
from  Minnesota  [Mr.  Nelson],  was  adopted : 

Resolved,  That  the  President  is  hereby  requested,  if  not  incompatible  with 
the  public  interests,  to  transmit  to  the  Senate  the  reports  of  the  Keep  Com- 
mission on  Department  methods,  relating  to  official  crop  statistics  and  the 
investigation  of  the  Twelfth  Census  report  on  agriculture. 


70  AMERICAN   FEDERAL   GOVERNMENT 

It  seems  nothing  could  be  more  purely  domestic  than  that.  I  find 
another,  as  follows : 

Resolved,  That  the  President  be  requested  to  furnish  the  Senate,  if  not  incom- 
patible with  the  best  interests  of  the  service,  the  petition  and  accompanying 
papers  of  certain  officers  of  the  Army,  veterans  of  the  civil  war,  retired  from 
active  service  for  disability  contracted  in  the  line  of  duty,  and  who  have  not 
yet  received  the  benefits  of  the  act  of  April  23,  1904. 

Those  are  two  very  recent  ones.  I  thought  I  remembered  some  re- 
lating to  the  Philippines,  and  I  find  there  are  some.  This  book  only  goes 
back  to  the  Fifty-eighth  Congress,  but  I  find  a  resolution  submitted  by 
Mr.  Hoar,  as  follows: 

Resolved,  That  the  President  be  requested,  if  not  in  his  opinion  incompatible 
with  the  public  interest,  to  inform  the  Senate  whether  there  be  any  law  or 
regulation  in  force  in  the  Philippine  Islands  which  will  prevent  any  native  of 
those  islands  who  may  so  desire,  not  under  arrest  and  against  whom  no  charge 
of  any  offense  against  the  United  States  is  pending,  from  coming  to  the  United 
States  and  stating  his  views  or  desires  as  to  the  interest  of  his  people  to  the 
President  or  either  House  of  Congress. 

Mr.  SPOONER.    When  was  that  adopted 

Mr.  LODGE.  That  was  referred  to  the  Committee  on  the  Philippines, 
and  printed.  It  was  not  adopted.  The  other  two  that  I  read  were 
adopted.  I  have  no  doubt  that  others  could  be  found.  Certainly,  I 
think  that  there  can  be  no  questoin  that  resolutions  of  inquiry  have  been 
addressed  to  the  President  on  all  possible  subjects.  In  this  case,  he  being 
Commander  in  Chief  of  the  Army,  it  seems  to  me  it  is  perfectly  proper 
in  form  to  address  a  resolution  to  him  on  a  subject  where  he  has  taken 
direct  action  and  about  which  there  is  a  great  deal  of  public  feeling  and 
has  been  a  great  deal  of  public  discussion.  It  seems  to  me  the  proper  way 
to  get  the  facts  before  us  is  to  make  inquiry,  not  only  of  the  War  Depart- 
ment, but  of  the  President  himself,  so  that  he  may  have  an  opportunity  to 
state  to  Congress  in  the  fullest  official  manner  the  reasons  which  actuated 
him  in  rendering  this  decision,  which,  of  course,  as  we  all  know,  is  pecul- 
iarly his  own. 

Mr.  WARREN.  Mr.  President,  I  take  it  for  granted  the  President  will 
find  some  way  to  put  the  Senate  in  possession  of  any  information  he  has 
that  he  wishes  to  put  before  it.  On  the  other  hand,  it  seems  to  me  en- 
tirely proper  for  the  Senate  to  ask  the  President  for  such  information  as 
the  Senate  wants,  and  that  he  is  the  proper  one  to  ask.  And  believing 
that  the  Senate  and  the  country  want  all  the  information  obtainable,  I  am 
willing,  if  I  have  the  opportunity,  to  vote  for  both  resolutions,  the  one 
proposed  by  the  Senator  from  Pennsylvania  [Mr.  Penrose]  and  the  one 
proposed  by  the  Senator  from  Ohio  [Mr.  Foraker].  I  know  of  no  rule 
against  such  action.  I  know  of  no  custom  against  it.  I  know  of  no 


THE  EXECUTIVE  AND   CONGRESS  71 

reason  why  we  should  not  adopt  both  resolutions  as  presented  here, 
though  by  all  means  we  should  indorse  the  one  directed  to  the  President 
whether  or  not  we  adopt  the  other  one. 

Mr.  TELLER.  Mr.  President,  the  precedents  cited  by  the  senior 
Senator  from  Massachusetts  [Mr.  Lodge]  might  be  increased  in  great  num- 
ber. For  many  years  past,  even  during  the  war,  it  was  a  frequent  occur- 
rence to  call  on  the  President  for  information.  I  myself  have  been  some- 
what of  a  stickler  in  reference  to  the  form  of  resolutions  of  inquiry.  We 
request  the  President,  and  we  direct  the  Cabinet  officers ;  but,  after  all, 
the  whole  matter  of  communicating  information  to  this  body  by  Cabinet 
officers  is  absolutely  under  the  control  of  the  President.  If  the  President 
declines  or  thinks  such  information  should  not  be  sent,  it  is  not  sent.  We 
request  the  President  for  information,  "if  not  incompatible  with  the 
public  interest."  That  is  merely  a  courteous  form  of  making  the  re- 
quest. If  we  left  out  the  expression  "if  not  incompatible  with  the  public 
interest,"  he  would  still  have  authority  to  withhold  any  information.  I 
think  it  will  be  found  that  the  rule  among  Cabinet  officers,  whenever  re- 
quests of  delicacy  or  importance  have  been  presented  by  Congress,  has 
been  to  consult  the  President  in  relation  thereto. 

Mr.  LODGE.  Will  the  Senator  allow  me  to  ask  him  a  question  in  that 
connection  ? 

The  VICE-PRESIDENT.  Does  the  Senator  from  Colorado  yield  to  the 
Senator  from  Massachusetts? 

Mr.  TELLER.    Certainly. 

Mr.  LODGE.  My  memory  is  that  there  have  been  cases  within  com- 
paratively recent  years  where  Cabinet  officers  having  been  directed  by 
resolution  of  the  Senate  to  send  certain  information  to  it,  have  withheld 
entirely,  or  withheld  in  part,  such  information  by  order  of  the  President. 

Mr.  TELLER.    Undoubtedly. 

Mr.  LODGE.  I  think  it  occurred  under  Mr.  Cleveland  on  more  than 
one  occasion,  and  I  think  it  has  occurred  in  relation  to  the  Department 
of  the  Interior  quite  recently,  though  I  do  not  remember  the  exact  date. 

Mr.  CARMACK.    Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Colorado  yield  to  the 
Senator  from  Tennessee  ? 

Mr.  TELLER.    Yes. 

Mr.  CARMACK.  I  think  that  occurred  in  a  former  session  of  Congress 
when  an  answer  to  a  resolution  of  mine  asking  the  Secretary  of  the  Treas- 
ury for  certain  information  was  declined  on  the  ground  that  it  would  be 
incompatible  with  the  best  interests  of  the  public  service. 

Mr.  TELLER.  Mr.  President,  there  are  undoubtedly  a  large  number 
of  precedents  of  that  kind.  I  had  occasion  some  time  ago  to  consult  the 
precedents  running  back  forty  or  fifty  years,  and  I  have  a  very  distinct 
recollection  of  a  number  of  cases  where  Presidents  have  declined  to  com- 
municate information  both  to  the  House  and  to  the  Senate. 


72  AMERICAN   FEDERAL   GOVERNMENT 

I  do  not  think  there  is  any  impropriety  in  our  asking  the  President  in  a 
courteous,  proper  manner  to  communicate  information  to  the  Senate.  I 
am  under  the  impression,  Mr.  President,  that  the  better  practice  would 
be  to  ask  the  Secretary  of  War,  the  Secretary  of  the  Treasury,  or  the  Sec- 
retary of  the  Navy,  whoever  it  might  be  that  had  the  matter  under  con- 
trol, without  annoying  the  President  and  adding  to  his  work.  But,  so 
far  as  I  am  concerned,  I  am  willing  to  vote  for  a  resolution  asking  the 
President  for  information,  or  I  am  willing  to  vote  for  a  resolution  asking 
the  Secretary  of  War  for  information ;  but  I  do  not  think  we  ought  to  ask 
them  both.  It  seems  to  me  we  ought  to  confine  ourselves  to  one  or  the 
other.  I  simply  express  my  preference  for  the  method  of  asking  the  Sec- 
retary of  War,  instead  of  asking  the  President.  If  the  President  or  the 
Secretary  of  War  wish  to  communicate  on  the  subject,  they  know  how 
to  do  so  by  direct  message  to  this  body. 

Mr.  LODGE.    Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Colorado  yield  to  the 
Senator  from  Massachusetts  ? 

Mr.  TELLER.    Certainly. 

Mr.  LODGE.  I  was  going  to  say  that  the  resolution  I  read  request- 
ing the  President  for  certain  information  in  regard  to  veterans  of  the 
civil  war  was  introduced  by  the  Senator  from  Colorado  [Mr.  Teller] 
himself. 

Mr.  CARTER.  Mr.  President,  briefly,  and  principally  to  address  myself 
to  the  Senator  from  Wisconsin  [Mr.  Spooner],  I  think  it  may  be  taken  for 
granted  that  as  a  matter  of  mere  official  ethics  the  address  of  the  resolu- 
tion of  the  Senator  from  Pennsylvania  [Mr.  Penrose]  to  the  President  of 
the  United  States  is  deferential  and  correct.  It  must  not  be  lost  sight  of 
that  the  President  represents  the  executive  department,  a  coordinate  de- 
partment of  the  Government.  The  right  of  the  President,  because  of  his 
character  as  Chief  Executive  of  the  Nation,  charged  with  the  conduct  of 
our  foreign  affairs,  to  be  the  sole  judge  as  to  the  communication  to  Con- 
gress of  matters  relating  to  our  international  affairs  was  well  stated  by 
the  Senator  from  Wisconsin. 

The  Senator  further  proceeded  to  say  that  in  case  of  actual  war  it 
would  be  obviously  improper  for  the  Senate  to  call  upon  the  Commander 
in  Chief  of  the  Army  and  Navy  for  plans  of  battles  or  campaigns,  for 
drafts  of  fortifications  or  lines  of  defense,  or  for  any  information  which, 
if  made  public,  might  militate  against  the  interests  of  the  country.  But 
the  Senator  undertakes  to  differentiate  by  saying  that  this  it  a  time  of 
peace,  and,  therefore,  the  directions  of  the  President  with  reference  to 
the  Army  must  be  under  a  different  rule  as  relates  to  the  legislative  de- 
partment from  that  which  would  obtain  in  time  of  war.  The  logic  of 
that,  I  think,  will  not  be  apparent  to  the  mind  of  the  Senator  from  Wis- 
consin when  he  reflects  upon  the  particular  facts  in  this  case  as  made 
known  by  current  information. 


THE   EXECUTIVE  AND   CONGRESS  73 

Mr.  SPOONER.    Mr.  President,  I  desire  to  submit  a  few  observations. 

I  agree  entirely  with  the  Senator  from  Colorado  [Mr.  Teller]  that  this 
discussion  of  the  merits  of  the  question  is  entirely  premature.  For  one  I 
intend  to  withhold  any  discussion  of  it  until  the  incoming  of  a  report 
which  puts  the  Senate  officially  in  possession  of  all  the  facts  in  relation 
to  it. 

The  Senator  from  Colorado  is  mistaken  in  supposing  that  I  made  any 
point  of  order  against  the  resolution  offered  by  the  Senator  from  Penn- 
sylvania. I  did  not.  I  objected  to  the  form  of  the  resolution  —  that  is, 
I  objected  to  a  resolution  addressed  to  the  President  as  unusual.  I  still 
adhere,  Mr.  President,  to  that  objection  as  a  matter  of  proper  practice 
although  there  is  nothing  in  the  Constitution  to  prohibit  it,  nothing  in  the 
rules  of  the  Senate  to  prohibit  it.  It  is  entirely  competent  for  the  Senate 
to  pass  it. 

Mr.  PENROSE.    Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to  the 
Senator  from  Pennsylvania? 

Mr.  SPOONER.    Certainly. 

Mr.  PENROSE.  I  should  like  to  ask  the  Senator  on  that  point  whether 
he  contradicts  the  statement  made  by  me  and  the  Senator  from  Massa- 
chusetts [Mr.  Lodge]  that  there  are  numerous  precedents  of  the  Senate 
justifying  this  course.  His  present  objection  is  purely  theoretical  and 
critical  of  a  bad  practice  in  the  past  as  much  as  in  the  present. 

Mr.  SPOONER.  I  will  get  to  that.  Mr.  President,  I  have  not  examined 
the  precedents.  I  speak  from  my  recollection  as  to  the  almost  uniform 
practice  of  the  Senate  during  a  period  of  nearly  sixteen  years  in  which  I 
have  been  a  member  of  the  body.  It  appears  that  resolutions  addressed 
to  the  President  have  been  introduced  and  passed  —  one  offered  by  the 
Senator  from  Colorado  [Mr.  Teller].  I  rather  think  it  must  have  been 
inadvertently  done,  because  it  was  not  a  subject  upon  which,  so  far  as  I 
recollect  the  scope  of  the  resolution,  there  could  have  been  any  possibility 
of  the  Executive  withholding  information  from  the  Senate.  The  general 
practice  of  the  Senate  has  been  —  and  it  is  a  good  practice,  an  almost 
universal  practice,  except  in  those  cases  where  the  nature  of  the  subject 
is  such  as  to  warrant  the  belief  that  all  of  the  information  may  not  prop- 
erly and  safely  be  communicated  to  either  House  of  Congress  —  not  to 
address  the  resolution  of  inquiry  to  the  President,  but  to  address  it  to  the 
Secretary  of  the  appropriate  Department,  making  it  a  direction  instead 
of  a  request. 

The  precedent  cited  by  the  Senator  from  Massachusetts  relative  to  a 
request  upon  the  President  for  a  copy  of  the  report  of  the  Keep  Com- 
mission does  not  fall  at  all  within  the  exception.  The  Keep  Commission 
was  not  a  commission  authorized  by  law.  It  was  a  commission  ap- 
pointed by  the  President  composed  of  officials  selected  from  the  various 
Departments  to  investigate  the  methods  of  the  Executive  Departments 


74  AMERICAN   FEDERAL   GOVERNMENT 

of  the  Government  and  to  report  to  the  President  for  his  information,  as 
I  recollect  it. 

Mr.  CARTER.    Mr.  President  - 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to  the 
Senator  from  Montana  ? 

Mr.  SPOONER.    Certainly. 

Mr.  CARTER.  I  should  like  to  ask  the  Senator  from  Wisconsin  if  that 
portion  of  the  resolution  should  be  amended,  thus  calling  upon  the  Presi- 
dent for  all  the  correspondence  and  all  the  facts,  whether  he  would  deem 
it  proper  to  call  upon  the  President,  without  qualification,  to  communi- 
cate to  the  Senate,  and  therefore  to  the  public,  the  correspondence,  if  any 
there  be,  between  the  Department  of  Justice  and  the  legally  constituted 
authorities  of  the  State  of  Texas  with  reference  to  the  commission  of 
crimes  in  that  State  by  soldiers  of  the  United  States  liable  to  punishment 
under  State  law,  if  such  communication  would  militate  against  the  ends 
of  justice? 

Mr.  SPOONER.  The  Senator  from  Montana  has  utterly  misappre- 
hended my  objection  to  this  resolution.  He  insists  that  my  objection  is 
because  of  the  presence  in  it  of  the  words  "if  not  incompatible  with  the 
public  interests."  He  is  quite  mistaken.  I  know  quite  well  that  propri- 
ety demands  that  when  a  request  for  information  is  addressed  to  the  Presi- 
dent —  and  that  is  why  I  think  such  requests  are  limited,  and  has  been  in 
general  practice,  to  the  cases  which  I  indicated  when  I  first  spoke  —  it  is 
always  qualified  so  far  as  I  recollect,  by  these  words.  My  preference  for 
the  resolution  of  the  Senator  from  Ohio  is  because,  being  a  request  for 
detailed  information,  our  right  to  which  is  beyond  question,  it  is  ad- 
dressed to  the  Secretary  of  War,  and  contains  no  evidence  that  the  Senate 
doubts  its  right  to  the  information. 

I  do  not  take  it  to  be  open  to  debate,  Mr.  President,  that  the  Senate 
has  a  right  to  obtain  from  the  War  Department  copies  of  discharges,  rec- 
ords of  courts-martial  —  everything  relating  to  the  domestic  administra- 
tion of  the  Army  not  connected  with  plans  of  campaign  or  of  war. 

Mr.  CARTER.    Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to  the 
Senator  from  Montana? 

Mr.  SPOONER.    I  do. 

Mr.  CARTER.  Then  I  wish  to  state  that  I  clearly  and  distinctly  under- 
stood the  Senator  from  Wisconsin  to  object  to  the  words  "if  not  incom- 
patible with  the  public  interests"  in  this  form  of  resolution. 

Mr.  SPOONER.  Mr.  President,  I  objected  to  the  resolution  because 
it  requires  those  words  and  implies  in  the  resolution  itself  a  doubt  upon 
the  part  of  the  Senate  whether  or  not  this  information  might  be  properly 
withheld  from  the  Senate.  That  is  my  objection. 

Mr.  CARTER.  The  objection  of  the  Senator  was  to  the  addressing  of 
any  resolution  to  the  President  on  the  subject. 


THE   EXECUTIVE  AND   CONGRESS  75 

Mr.  SPOONER.  For  that  reason.  The  almost  universal  rule  of  the 
Senate  has  been  to  address  no  inquiries  to  the  President  of  the  United 
States  without  those  words ;  I  remember  no  exception,  where  the  nature 
of  the  subject  of  inquiry  was  such  as  to  make  it  perfectly  apparent  that 
the  Senate  or  the  House  was  entitled  of  right  to  all  the  information  cov- 
ered by  it,  the  direction,  not  the  request,  has  been  made  as  an  almost  uni- 
versal rule  upon  the  appropriate  Cabinet  officer,  instead  of  by  resolution 
of  inquiry  addressed  to  the  President. 

I  said  there  were  some  exceptions,  and  there  are.  Foreign  relations 
constitute  one  exception ;  the  movement  or  plan  of  campaign  of  the  Army 
or  the  Navy  in  time  of  war  constitutes  another,  because  even  a  child 
would  know  that  the  Commander  in  Chief,  under  our  Constitution,  must 
have  the  discretion  in  order  to  insure  the  safety  of  the  Republic  and  the 
success  of  our  arms,  to  exercise  discretion  and  to  withhold,  if  his  judg- 
ment so  dictates,  information  which  would  endanger  the  public  interest 
if  it  were  given  to  the  public.  The  Senator  from  Montana,  with  a  logic 
the  like  of  which  I  have  never  known  him  to  indulge  in  before,  seemed  to 
think  that  there  is  no  distinction,  and  can  be  none,  between  the  informa- 
tion which  the  Senate  or  the  House  is  entitled  to  have  in  relation  to  the 
Army  in  time  of  war  and  in  time  of  peace. 

It  does  not  at  all  follow,  Mr.  President,  because  certain  inquiries  as  to 
the  Army  must  be  in  time  of  war  addressed  to  the  President,  and  he  have 
discretion  to  withhold  or  to  transmit  information,  that  in  time  of  peace, 
upon  every  imaginable  subject  connected  with  the  administration  of  the 
Army,  it  is  proper,  or  comports  with  the  dignity  of  the  Senate  or  of 
the  other  House  as  legislative  bodies  in  all  cases  to  address  inquiries  to 
the  President,  qualified  as  courtesy  requires  such  inquiries  to  be. 

Mr.  CARTER.    Now,  Mr.  President  — 

Mr.  SPOONER.    I  want  to  get  through. 

Mr.  CARTER.    I  wish  to  address  the  Senator  a  question  at  that  point. 

Mr.  SPOONER.    Very  well. 

Mr.  CARTER.  It  is  well  known  that  we  are  expending  very  large 
sums  of  money  on  our  coast  defenses. 

Mr.  SPOONER.    Certainly. 

Mr.  CARTER.  I  will  ask  the  Senator  if  he  thinks  in  time  of  peace  it  is 
proper  for  the  legislative  department  of  the  Government  to  make  public 
all  the  plans  of  defense  that  are  being  prepared  in  case  of  war  by  calling 
on  the  Secretary  of  War  or  the  President  to  disclose  such  information  ? 

Mr.  SPOONER.  The  Senator  gets  back  to  my  path  —  that  is,  that  the 
question  is  to  be  resolved  with  reference  to  the  subject-matter.  I  ad- 
mitted it,  and  I  admit  it  now.  I  must  admit  that  there  are  numerous  cases 
in  which  absolute  direction  upon  one  of  the  Departments  or  upon  a  Cab- 
inet officer  is  subject  of  right,  I  mean,  to  a  declination  by  order  of  the 
President  to  that  officer  to  afford  the  information.  But  that  argues  noth- 
ing upon  a  subject  like  this  or  upon  the  subject  generally  embodied  in  the 


y6  AMERICAN  FEDERAL   GOVERNMENT 

resolution  of  inquiry  by  the  Senate  and  by  the  House.  We  could  not  call 
upon  the  Attorney- General  to  send  to  the  Senate  copies  of  papers  which 
he  has  acquired  through  investigation  to  be  used  in  the  trial  of  a  gang  of 
counterfeiters  or  to  be  used  in  the  trial  of  cases  prosecuted  under  the  anti- 
trust law  for  the  obvious  reason,  Mr.  President,  that  it  would  lead  pos- 
sibly to  the  defeat  of  the  Government's  litigation.  You  can  not  put  your 
side  of  the  case  into  the  hands  of  your  opponent.  If  an  investigation  has 
been  made  by  the  Treasury  Department  with  reference  to  the  appre- 
hension of  men  who  are  smugglers,  Congress  could  not  expect  the  Presi- 
dent to  permit  the  information  to  be  sent  to  the  Senate  or  the  House,  and 
warning  thereby  be  given  to  those  whom  the  Government  seeks  to 
apprehend. 

There  are  many  such  cases.  Is  this  a  case  of  that  kind  ?  Congress,  Mr. 
President,  fixes  the  size  of  the  Army.  The  Army  is  the  Army  of  the 
people  of  the  United  States.  It  is  created  by  act  of  Congress.  The  rules 
for  its  government  are  entirely  within  the  jurisdiction  of  Congress.  The 
grounds  upon  which  men  may  be  discharged  is  within  the  constitutional 
capacity  of  the  Congress.  Whether  any  man  can  be  discharged  for  of- 
fense without  a  trial  is  entirely  within  the  constitutional  competency  of 
Congress.  Whether  the  President  shall  be  given  the  right  to  dismiss  an 
officer  at  will  without  trial  is  for  Congress  to  say.  The  Army  is  sup- 
ported by  moneys  appropriated  by  Congress.  The  manner  of  the 
expenditure  of  those  moneys  Congress  has  a  right  to  know.  I  do  not 
make  any  doubt  whatever,  Mr.  President,  that  it  is  within  the  constitu- 
tional right  of  the  House  or  of  the  Senate  either,  acting  in  a  legislative 
capacity  upon  this  subject,  to  direct  the  Secretary  of  War  to  transmit  to 
the  Senate  or  to  the  House  all  information  within  his  jurisdiction  upon 
the  subject  of  the  discharge  of  the  three  colored  companies. 

Now,  Mr.  President,  the  foundations  of  the  Union  will  not  be  shaken 
whichever  of  these  resolutions  is  adopted,  or  if  both  be  adopted.  I  am 
surprised  that  the  Senator  from  Wyoming  [Mr.  Warren]  withdrew  his 
resolution.  They  all  three  might  have  been  adopted.  The  Senator  from 
Pennsylvania  thinks  it  improper  that  both  should  be  adopted.  He  offered 
his  resolution  in  the  form  which  he  employed  addressed  to  the  President 
—  the  form  is  proper  if  the  resolution  is  to  be  addessed  to  the  President 
at  all  —  because  the  Senator  thought  it  would  not  be  within  the  proprie- 
ties, it  having  been  the  President's  act,  to  address  it  to  his  subordinate, 
the  Secretary  of  War. 

I  do  not  stop  to  discuss  the  question  of  propriety ;  but  it  is  very  proper, 
some  Senators  think,  to  pass  both  of  the  resolutions.  The  Senator  from 
Massachusetts  [Mr.  Lodge]  seems  to  think  so;  the  Senator  from  Mon- 
tana [Mr.  Carter]  seems  to  think  so. 

There  never  has  been,  within  my  knowledge,  a  President  who  is  more 
frank  with  both  bodies  of  Congress  than  the  present  Executive.  The 
objection  is  based  upon  principle  and  was  made  because  I  believe  it  is 


THE  EXECUTIVE  AND   CONGRESS  77 

the  dignified  and  proper  course  for  both  bodies  to  pursue  as  to  subjects 
upon  which  the  House  or  the  Senate  is  entitled  manifestly  to  the  informa- 
tion to  make  a  direction  in  the  usual  way  upon  the  appropriate  Cabinet 
officer. 

I  think  it  will  look  rather  absurd  —  I  shall  not  further  object  to  it,  Mr. 
President  —  to  pass  the  resolution  calling  upon  the  President,  if  not  in- 
compatible with  the  public  interests,  for  full  information  bearing  upon  the 
subject,  and  also  to  pass  the  resolution  of  the  Senator  from  Ohio,  direct- 
ing the  Secretary  of  War,  who  has  probably  received  most  of  these  papers 
from  the  President,  to  furnish  all  information  upon  the  subject  on  file  in 
the  War  Department.  But  that  is  a  matter  for  the  Senate  to  determine. 

Mr.  TELLER.  Mr.  President,  I  do  not  wish  to  prolong  this  debate, 
but  the  Senator  from  Wisconsin  [Mr.  Spooner]  seems  to  think  that  the 
resolution  which  I  introduced  some  time  ago  must  have  been  inadver- 
tently introduced.  I  presume  the  files  of  this  Senate  will  show  a  great 
many  resolutions  of  mine  of  a  similar  kind.  I  want  to  say  to  the  Senator, 
as  a  matter  of  history,  that  if  he  will  take  the  trouble  to  go  into  the  ques- 
tion of  the  right  of  the  Senate  and  of  the  other  House  to  call  upon  the 
Executive  for  information,  he  will  find  that  in  the  early  history  of  the 
country  such  requests  went  directly  to  the  President.  If  he  will  take  the 
pains  to  go  back  fifty  years  he  will  find  that  it  was  a  common  occurrence, 
and  I  will  venture  to  say  there  has  not  been  a  President  since  the  days  of 
Washington  who  has  not  been  called  upon  by  the  Senate  and  the  other 
House  for  information. 

During  the  exciting  times  immediately  after  the  civil  war,  when  Andrew 
Johnson  was  President  of  the  United  States,  a  great  number  of  such 
resolutions  from  the  House  and  the  Senate  were  day  after  day  directed  to 
the  President.  Sometimes  he  furnished  the  information  and  sometimes 
he  did  not.  If  he  did  not  furnish  it,  he  would  say  that  he  did  not  think 
it  was  compatible  with  the  public  interests  that  he  should  do  so.  In  such 
cases  I  believe. he  always  courteously  declined. 

When  we  call  upon  the  President  for  information,  we  request  him; 
when  we  call  upon  the  Secretary  of  War,  we  direct  him.  Suppose  the 
Secretary  of  War  fails  to  reply.  Where  is  the  power  of  the  Senate  to  com- 
pel him  ?  He  is  a  subordinate  of  the  President.  He  is  the  mouthpiece 
of  the  President  in  many  ways.  He  becomes  the  mouthpiece  of  the  Presi- 
dent because  of  his  special  knowledge  in  regard  to  certain  matters.  You 
call  upon  the  man  who  is  supposed  to  know  most  about  the  subject  con- 
cerning which  information  is  desired.  If  you  want  to  know  ahout  public 
lands  or  about  pensions,  you  call  upon  the  Secretary  of  the  Interior;  but 
if  you  want  to  know  about  military  affairs,  you  call  upon  the  Sec- 
retary of  War.  There  is,  however,  no  way  by  which  you  can  compel 
the  Secretary  of  War  to  reply,  unless  by  impeachment,  and  we  cannot 
institute  such  proceedings,  for,  under  the  Constitution,  they  must  orig- 
inate in  the  House  of  Representatives. 


78  AMERICAN   FEDERAL   GOVERNMENT 

There  is  nothing  unusual  in  the  resolution  of  the  Senator  from  Penn- 
sylvania. As  I  said  before,  the  resolution  of  the  Senator  from  Ohio  calls 
upon  the  Secretary  of  War  for  information  that  is  not  in  the  hands  of  the 
President,  and  therefore  I  prefer  the  form  of  his  resolution.  At  the  end 
of  his  resolution  there  is  a  request  for  an  order  issued  to  Major  Penrose. 
Probably  that  order  is  not  in  the  keeping  of  the  President,  but  is  in  the 
keeping  of  the  Secretary  of  War.  It  seems  to  me  there  is  an  unnecessary 
question  of  propriety  raised  here.  I  do  not  myself  want  to  admit  that 
when  the  Senate  wants  information  it  can  not  call  upon  the  Executive  for 
it.  I  do  not  care  whether  it  is  in  one  Department  or  another  or  whether 
it  is  solely  under  the  control  of  the  President.  You  may  call  upon  him 
for  information  affecting  matters  of  foreign  diplomacy,  but  he  is  not 
obliged  to  answer;  sometimes  he  would  be  derelict  in  duty  if  he  did  an- 
swer ;  but  it  must  be  fairly  presumed  that  the  Senate  of  the  United  States 
will  never  call  upon  the  President  for  information  which  ought  not  to  be 
given  to  the  country.  If  he  says  "  I  do  not  consider  it  compatible  with  the 
public  interests  that  I  should  give  it,"  that  is  the  end  of  the  controversy. 

Mr.  WARREN.  I  want  to  ask  the  Senator  a  question  before  he  takes 
his  seat. 

The  VICE-PRESIDENT.  Does  the  Senator  from  Colorado  yield  to  the 
Senator  from  Wyoming? 

Mr.  TELLER.    Certainly. 

Mr.  WARREN.  The  Senator  from  Colorado  has  been  a  distinguished 
Cabinet  officer,  and  I  want  to  put  this  question  to  him:  In  the  present 
case  the  President,  by  the  Constitution,  is  clearly  Commander  in  Chief 
of  the  Army  —  in  other  words,  he  is  the  highest  officer  of  the  Army.  He 
bears  a  relation  to  the  Army  and  Navy  that  he  does  not  bear  as  to  other 
Departments.  It  seems  to  me  that  information  regarding  this  particular 
case  lies  not  only  with  the  Secretary  of  War,  but  undoubtedly  with  the 
Department  of  Justice  as  well.  Therefore  I  want  to  ask  the  Senator  from 
Colorado  if,  when  we  make  an  inquiry  of  the  President,  he  will  not,  as  a 
matter  of  course,  call  upon  the  different  Departments  for  such  informa- 
tion as  he  chooses  to  furnish,  whereas,  if  we  call  upon  the  Secretary  of 
War  alone,  he  furnishes  only  that  which  his  Department  has?  If  so,  it 
seems  to  me  in  this  case  —  while  I  am  ready  to  vote  for  both  resolutions 
—  if  we  are  to  select  one  and  vote  for  only  one,  it  should  be  the  one  calling 
upon  the  President,  first,  because  he  has  control  over  both  of  these  De- 
partments that  may  have  evidence;  second,  he  is  the  Commander  in 
Chief  of  the  Army  and  its  highest  authority,  and,,  third,  this  action  con- 
cerning the  discharge  of  troops  is  the  action  of  the  President,  in  the  ab- 
sence from  the  city  at  the  time  of  the  Secretary  of  War,  and  therefore  the 
President  is  the  highest  authority  to  appeal  to  and  the  man  above  all 
others  who  is  able  to  furnish  us  the  information  we  want. 

Mr.  TELLER.  I  think  the  Senator  has  answered  his  own  question, 
and  I  think  he  is  correct  about  it. 


IV 

THE   TREATY-MAKING   POWER 

[The  treaty-making  power  is  shared  by  the  President  and  the  Senate.  It  is 
inevitable  that  discussions  should  arise  as  to  the  extent  of  the  proper  functions 
of  each  of  these  agents.  In  addition  to  the  function  of  making  treaties,  the 
President  holds  many  powers  through  which  he  can  influence  or  determine 
the  transaction  of  international  business  and  the  foreign  policy  of  this  nation. 
As  commander  in  chief  of  the  navy,  he  controls  the  action  of  that  branch  of 
federal  service;  through  his  power  of  receiving  ambassadors  and  public 
ministers,  he  may  determine  the  fundamental  relations  of  our  government  to 
other  States.  Informal  agreements  have  often  been  concluded  between  the 
Executive  and  foreign  representatives,  without  reference  to  the  Senate.  For 
the  latter  see  J.  B.  Moore's  article  on  "Treaties  and  Executive  Agreements" 
in  the  Pol.  Sc.  Q.  20:  385,  and  Reinsch,  American  Legislatures,  page  94  and 
following.  All  these  matters  were  discussed  in  detail  most  thoroughly  during 
the  sessions  of  1906  and  1907,  especially  in  connection  with  the  San  Domingo 
affair.  The  situation  is  briefly  stated  in  the  following  extract  from  the  point  of 
view  of  the  opposition;  and  is  then  discussed  in  detail  in  the  debate  between 
Senators  Spooner  and  Bacon.] 

SENATOR  RAYNER  ON  THE  TREATY-MAKING  POWER  J 

I  SHALL  now  take  as  the  first  instance  where  there  has  been  a  conflict 
between  executive  and  legislative  functions  —  the  treaty-making  power 
of  the  President  and  the  Senate.  Article  second  of  the  Constitution  pro- 
vides that  the  President  shall  have  power  by  and  with  the  advice  and 
consent  of  the  Senate  to  make  treaties,  provided  that  two-thirds  of  the 
Senators  present  concur.  In  the  Santo  Domingo  affair  the  President  has 
evidently  made  his  own  treaty.  I  am  not  discussing  the  proposition 
whether  his  views  and  purposes  are  right  or  wrong  in  reference  to  Santo 
Domingo.  He  may  be  right  —  a  great  many  persons  think  that  he  is. 
He  may  have  performed  a  great  public  service  for  the  people  of  that  island 
and  for  civilization  and  humanity  in  the  efforts  that  he  has  made  to  ex- 
tricate them  from  their  difficulties  and  misfortunes.  This  is  not  the 
point  at  issue.  The  charge  that  I  make  is  that  he  has  accomplished  this 

1  Congr.  Record,,  Jan.  31,  1907. 
79 


80  AMERICAN   FEDERAL   GOVERNMENT 

in  violation  of  the  Constitution,  and  has  set  an  example  for  his  succes- 
sors which,  if  followed,  would  abrogate  the  provision  that  gives  this  body 
the  right  to  be  consulted  in  the  treaty-making  power. 

The  principal  provision  of  the  Santo  Domingo  treaty  relates  to  the 
collection  of  the  revenues  of  the  island  and  their  distribution  among  its 
creditors.  All  other  parts  of  the  treaty  were  subordinate  to  this.  What 
has  been  done  ?  The  treaty  has  been  practically  carried  into  effect  with- 
out consulting  the  Senate.  The  appointment  of  an  American  agent  as 
an  official  of  Santo  Domingo  to  collect  its  customs  was  simply  a  cover 
and  an  evasion.  Under  the  principles  of  international  law  and  the  comity 
of  nations  this  Government  is  morally  bound  for  the  proper  custody  of 
this  fund,  and  would  be  liable  in  case  of  its  waste  or  loss.  After  its  col- 
lection the  only  act  of  any  consequence  that  remained  to  be  done  was  its 
distribution,  and  even  this  has  been  practically  determined  upon,  I  under- 
stand, by  settlement  with  her  creditors. 

Now,  when  you  add  to  this  the  fact  that  our  war  ships  are  in  the  har- 
bors of  the  island  ostensibly  for  the  purpose  of  protecting  American  in- 
terests, but  in  reality  protecting  the  officials  of  the  island  against  any 
menace  from  without,  and  revolution  from  within,  you  have  the  estab- 
lishment of  a  sovereignty  or  a  protectorate  without  a  word  from  Con- 
gress or  the  Senate  sanctioning  the  same.  This  is  called  a  modus  vivendi, 
but  the  phrase  modus  vivendi  has  no  application  to  a  condition  of  this 
sort,  and  is  a  perfectly  meaningless  absurdity  in  this  connection.  What 
is  being  done  is  the  maintenance  of  a  status  quo,  but  a  status  quo  created 
by  the  President  at  the  time  of  the  negotiation  of  the  treaty,  and  without 
any  warrant  of  law  whatsoever.  I  do  not  believe  that  in  all  the  archives 
of  the  State  Department  there  can  be  found  any  precedent  for  such  a 
proceeding.  Any  President  could  at  that  time,  following  this  example, 
make  an  agreement  with  any  foreign  country,  uphold  it  by  armed  inter- 
vention, and  then  if  the  Senate  declined  to  confirm  his  action  simply  an- 
nounce that  he  proposed  to  maintain  the  status  quo  or  modus  vivendi,  as 
it  is  erroneously  called,  and  thus  practically  effectuate  a  treaty  whether 
the  Senate  consents  or  not.  What  the  President  has  done  in  reference  to 
Santo  Domingo  he  can  duplicate  any  day  with  respect  to  any  of  the  bank- 
rupt and  revolutionary  Republics  of  Central  or  South  America.  They 
may  appeal  to  him  for  help.  He  may  negotiate  a  treaty  and  the  Senate 
may  decline  to  act  upon  the  treaty,  and  in  the  meantime  he  may  enter 
into  an  agreement  with  them  to  collect  their  customs  duties,  place  them 
on  deposit  in  an  American  bank,  and  in  the  custody  of  an  American  rep- 
resentative, and  when  Congress  or  the  Senate  calls  him  to  account  he  can, 
with  absolute  defiance,  announce  that  the  work  has  been  done,  and  that 
it  is  the  duty  of  this  Government  to  make  a  proper  division  of  the  funds. 

When  an  appeal  comes  to  him  from  this  quarter  he  can  direct  our  war 
ships  to  protect  American  interests,  and  incidentally  the  party  in  power 
or  the  revolutionists  friendly  to  our  intervention,  and  he  can  assume  con- 


THE  TREATY-MAKING   POWER  81 

trol  over  their  custom-houses  and  maintain  a  financial  protectorate  over 
them  without  a  treaty  and  without  constitutional  or  legislative  sanction. 
This  policy  may  be  all  right  —  perhaps  the  American  people  are  in  favor 
of  this  new  doctrine ;  it  may  be  a  wonderful  accomplishment  —  Central 
America  may  profit  by  it ;  it  may  be  a  great  benefit  to  us  commercially 
and  it  may  be  in  the  interest  of  civilization,  but  as  a  student  and  follower 
of  the  Constitution,  I  deprecate  the  methods  that  have  been  adopted,  and 
I  appeal  to  you  to  know  whether  we  propose  to  sit  silently  by  and  by  our 
indifference  or  tacit  acquiescence  submit  to  a  scheme  that  ignores  the 
privileges  of  this  body ;  that  is  not  authorized  by  statute ;  that  does  not 
array  itself  within  any  of  the  functions  of  the  Executive ;  that  vests  the 
treaty-making  power  exclusively  in  the  President,  to  whom  it  does  not 
belong;  that  overrides  the  organic  law  of  the  land  and  that  virtually 
proclaims  to  the  country  that  while  the  other  branches  of  the  Govern- 
ment are  controlled  by  the  Constitution,  the  Executive  is  above  and 
beyond  it,  and  whenever  his  own  views  or  policies  conflict  with  it  he  will 
find  some  way  to  effectuate  his  purposes  uncontrolled  by  its  limitations. 


SPEECH    OF    SENATOR    JOHN    C.    SPOONER 
ON    TREATIES1 

Mr.  SPOONER  said: 

Mr.  President:  I  take  the  floor  upon  this  bill,  not,  however,  to  dis- 
cuss it,  but  to  present  as  briefly  as  I  may  my  views  upon  another  im- 
portant subject.  I  am  impelled  to  do  this  by  recent  debate  here,  more 
or  less  critical  of  the  conduct  of  our  foreign  relations  by  the  President, 
and  under  circumstances  which,  with  great  deference,  I  can  not  regard 
as  constituting  in  any  degree  wise  precedent. 

Matters  which  are  being  considered  by  the  Senate  as  an  executive 
body  have  been  debated  in  open  legislative  session.  Fifteen  years  of 
service  here  has  fully  confirmed  in  me  the  impression,  early  formed  after 
my  advent  in  this  body,  that  the  consideration  of  treaties  and  all  ques- 
tions involving  our  foreign  relations  are  best,  save  in  very  exceptional 
cases,  conducted  behind  closed  doors.  This,  of  course,  Mr.  President, 
not  because  there  is  anything  said  or  done  which  Senators  would  wish 
withheld  from  our  own  people,  but  because  it  is  inevitable  that  in  the 
perfect  frankness  which  should  characterize  debate  involving  our  foreign 
relations  many  things  must  be  said,  and  are  always  said,  which,  in  the 
public  interest,  ought  not  to  be  said  in  the  hearing  of  other  nations.  I 
am  clearly  of  the  conviction,  having  regard  to  the  peculiar  relations 
created  by  the  Constitution  between  the  Senate  and  the  Executive  in 
respect  to  the  exercise  of  the  treaty-making  power,  that  it  is  not  a  healthy 
precedent  to  establish,  or  one  much  to  be  followed,  that  involves  public 

1  Congr.  Record,  Jan.  23,  1906. 


82  AMERICAN   FEDERAL   GOVERNMENT 

discussion  of  current  foreign  relations,  including  treaties.     If  indulged 
at  all  it  ought  to  be  done  by  a  vote  of  the  body  since  otherwise  some  feel 
justified  in  discussing  phases  which  others  feel  not  at  liberty  to  debate. 
******** 

On  general  principles,  I  reiterate,  after  more  experience  in  this  body 
than  the  Senator  has  had,  but  not  so  much  as  he  doubtless  will  have, 
my  conviction  that  the  methods  of  the  fathers  in  the  treatment  by  the 
Senate  of  our  foreign  relations,  all  things  considered,  is  a  wise  one  and 
the  one  best  conserving  the  public  interest  of  the  United  States. 

Of  course  one  may  miss  the  inspiration  of  the  larger  audience,  but 
the  debates  of  the  executive  session  get  to  be  very  earnest ;  they  are  very 
frank,  they  are  intensely  patriotic,  they  exhibit  great  research  and  in- 
dustry, and  are,  in  my  judgment,  the  most  interesting  if  not  the  most 
valuable  of  all  discussions  in  the  Senate. 

I  have  heard  speeches  here  by  Senators  now  present,  and  by  Senators 
now  gone  from  here,  some  of  whom  are  dead,  which  for  learning,  elo- 
quence, and  patriotic  solicitude  and  forethought  for  the  interest  of  the 
United  States  in  foreign  relations  of  delicacy  and  grave  importance,  are 
not  to  be  surpassed,  and  would  have  received  enduring  admiration 
could  they,  in  harmony  with  the  interest  of  the  people,  have  been  given 
to  the  world.  By  common  consent  they  could  not,  and  so  they  live  only 
in  the  memories  of  those  who  heard  them. 

The  distinguished  and  patriotic  Senator  from  Georgia  [Mr.  Bacon], 
whose  friendship  I  greatly  value,  thought  it  wise  and  proper  to  intro- 
duce a  resolution  in  the  legislative  session  of  the  Senate  calling -upon 
the  President  for  certain  information,  including  the  instructions  given 
to  the  delegates  or  representatives  accredited  to  the  conference  now 
being  held  at  Algeciras  relative  to  Morocco,  in  order  that  the  Senate 
might,  sitting  in  judgment  upon  the  executive  conduct  of  our  foreign 
relations,  determine  whether  they  were  being  conducted  in  accordance 
with  the  traditions  of  our  country  or  were  being  conducted  in  violation 
of  them. 

I  regretted  the  introduction  of  the  resolution.  I  justify  the  wisdom  of 
the  Senate  in  closing  the  doors  upon  its  discussion.  But  notwithstand- 
ing, another  resolution,  general  in  its  terms,  dealing  with  the  traditional 
policy  of  the  United  States,  which  no  man  in  the  United  States  would 
willingly  see  disregarded  or  departed  from,  opened  the  way  for  the  full 
discussion  of  the  subject. 

Mr.  President,  with  great  respect  for  those  who  differ  from  me,  I 
deprecate  the  course  which  has  been  pursued.  I  believe  that  it  is  not 
a  proper  course  to  be  pursued  by  the  Senate  in  respect  of  our  foreign 
relations,  save  in  extraordinary  circumstances,  if  at  all.  The  Senate 
has  nothing  whatever  to  do  with  the  negotiation  of  treaties  or  the  conduct 
of  our  foreign  intercourse  and  relations  save  the  exercise  of  the  one  con- 
stitutional function  of  advice  and  consent  which  the  Constitution  re- 


THE  TREATY-MAKING   POWER  83 

quires  as  a  precedent  condition  to  the  making  of  a  treaty.  Except  as  to 
the  participation  in  the  treaty-making  power  the  Senate,  under  the  Con- 
stitution, has  obviously  neither  responsibilities  nor  power. 

From  the  foundation  of  the  Government  it  has  been  conceded  in 
practice  and  in  theory  that  the  Constitution  vests  the  power  of  negotia- 
tion and  the  various  phases  —  and  they  are  multifarious  —  of  the  con- 
duct of  our  foreign  relations  exclusively  in  the  President.  And,  Mr. 
President,  he  does  not  exercise  that  constitutional  power,  nor  can  he 
be  made  to  do  it,  under  the  tutelage  or  guardianship  of  the  Senate  or  of 
the  House  or  of  the  Senate  and  House  combined. 

Mr.  TILLMAN.     Will  the  Senator  allow  me  to  ask  him  a  question? 

Mr.  SPOONER.     Certainly. 

Mr.  TILLMAN.  What  interpretation  does  the  Senator  put  upon  the 
word  " advice"  in  the  Constitution?  Can  you  give  advice  after  a  thing 
has  been  done? 

Mr.  SPOONER.     Yes ;  you  can  give  advice  — 

Mr.  TILLMAN.  As  to  whether  or  not  a  thing  has  been  properly  done, 
but  you  can  not  give  advice  after  it  has  been  done. 

Mr.  SPOONER.     I  will  proceed  to  answer  the  question,  if  I  am  able. 

The  words  "advice  and  consent  of  the  Senate"  are  used  in  the  Con- 
stitution with  reference  to  the  Senate's  participation  in  the  making  of 
a  treaty  and  are  well  translated  by  the  word  "  ratification "  popularly 
used  in  this  connection.  The  President  negotiates  the  treaty,  to  begin 
with.  He  may  employ  such  agencies  as  he  chooses  to  negotiate  the  pro- 
posed treaty.  He  may  employ  the  ambassador,  if  there  be  one,  or  a 
minister  or  a  charge  d'affaires,  or  he  may  use  a  person  in  private  life 
whom  he  thinks  by  his  skill  or  knowledge  of  the  language  or  people  of 
the  country  with  which  he  is  about  to  deal  is  best  fitted  to  negotiate  the 
treaty.  He  may  issue  to  the  agent  chosen  by  him  —  and  neither  Con- 
gress nor  the  Senate  has  any  concern  as  to  whom  he  chooses  —  such 
instructions  as  seem  to  him  wise.  He  may  vary  them  from  day  to  day. 
That  is  his  concern.  The  Senate  has  no  right  to  demand  that  he  shall 
unfold  to  the  world  or  to  it,  even  in  executive  session,  his  instructions 
or  the  prospect  or  progress  of  the  negotiation.  I  said  " right."  I  use 
that  word  advisedly  in  order  to  illustrate  what  all  men  who  have  studied 
the  subject  are  willing  to  concede  —  that  under  the  Constitution  the 
absolute  power  of  negotiation  is  in  the  President  and  the  means  of 
negotiation  subject  wholly  to  his  will  and  his  judgment. 

When  he  shall  have  negotiated  and  sent  his  proposed  treaty  to  the 
Senate  the  jurisdiction  of  this  body  attaches  and  its  power  begins.  It 
may  advise  and  consent,  or  it  may  refuse.  And  in  the  exercise  of  this 
function  it  is  as  independent  of  the  Executive  as  he  is  independent  of 
it  in  the  matter  of  negotiation. 

I  do  not  deny  the  power  of  the  Senate  either  in  legislative  session  or 
in  executive  session  —  that  is  a  question  of  propriety  —  to  pass  a  resolu- 


84  AMERICAN  FEDERAL   GOVERNMENT 

tion  expressive  of  its  opinion  as  to  matters  of  foreign  policy.  But  if  it  is 
passed  by  the  Senate  or  by  the  House  or  by  both  Houses,  it  is  beyond 
any  possible  question  purely  advisory,  and  not  in  the  slightest  degree 
binding  in  law  or  conscience  upon  the  President.  It  is  easy  to  conceive 
of  circumstances  in  which  to  pass  in  legislative  session  a  resolution  like 
that  first  introduced  by  my  distinguished  and  learned  friend,  the  Senator 
from  Georgia  [Mr.  Bacon],  asking  the  President,  if  in  his  opinion  not 
incompatible  with  the  public  good,  to  transmit  the  correspondence  in 
a  pending  negotiation  to  the  Senate,  might  be  productive  of  mischief. 
I  think  the  Morocco  case  is  perhaps,  one  which  could  be  productive  of 
mischief  in  this,  that  the  President's  declination,  which  would  be  within 
his  power,  upon  the  ground  that  the  public  good  required  that  the  cor- 
respondence should  not  be  sent  to  the  Senate,  might  give  rise  to  an  in- 
ference in  other  countries  that  something  with  reference  to  one  or  more 
of  the  parties  was  being  concealed  from  them. 

Mr.  President,  I  do  not  stop  at  this  moment  to  cite  authorities  in 
support  of  the  proposition,  that  so  far  as  the  conduct  of  our  foreign  re- 
lations is  concerned,  excluding  only  the  Senate's  participation  in  the 
making  of  treaties,  the  President  has  the  absolute  and  uncontrolled  and 
uncontrollable  authority.  Under  the  confederation  there  was  felt  to  be 
great  weakness  in  a  system  that  made  the  Congress  the  organ  of  com- 
munication with  foreign  governments;  but  when  the  Constitution  was 
formed,  it  being  almost  everywhere  else  in  the  world  a  purely  executive 
function,  it  was  lodged  with  the  President.  He  was  given  the  power, 
with  all  other  Executive  functions,  "to  receive  ambassadors  and  other 
public  ministers."  His  exercise  of  that  function  can  not,  under  the  Con- 
stitution, be  controlled  by  any  other  body  in  the  Government.  That 
is  a  tremendous  power  given  by  the  Constitution  to  the  President  — 
the  power  to  receive  or  reject  an  ambassador  or  a  public  minister  or 
any  one  of  the  representatives  known  to  international  law  as  it  existed 
when  the  Constitution  was  adopted.  That  involves  not  simply  the 
mere  recognition  of  governments  or  administrations,  but  it  involves 
sometimes  the  recognition  of  a  new  nation.  It  involves  passing  upon 
the  question  of  independence.  It  involves  decision  as  to  the  various 
changes  which  occur  in  the  administration  or  government  of  nations  — 
one  administration  or  faction  in  power  to-day,  another  next  week,  an- 
other a  month  later.  The  President  decides.  He  was  given  the  power 
to  appoint  "ambassadors,  other  public  ministers,  and  consuls,"  which 
has  been  held  to  include  diplomatic  agents  then  known  to  international 
law  and  international  intercourse.  Those  offices  are  not  created  by  the 
Congress.  The  Congress  controls  the  purse,  and  may  not  see  fit  to 
appropriate  compensation  for  those  appointed  by  the  President,  but  it 
has  been  well  held  and  is  irrefutable  that  under  the  Constitution  the 
offices  are  created  by  that  instrument,  and  he  is  given  his  own 
absolute  will  as  to  when  he  will  appoint  and  whom  he  will  appoint  — • 


THE  TREATY-MAKING   POWER  85 

Mr.  TILLMAN.     Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to 
the  Senator  from  South  Carolina? 

Mr.  SPOONER.     Except  as  to  confirmation  by  the  Senate. 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to 
the  Senator  from  South  Carolina  ? 

Mr.  SPOONER.     Certainly. 

Mr.  TILLMAN.  The  Senator  from  Wisconsin  having  modified  his 
statement  to  that  extent,  I  will  not  allude  to  that  point;  but  I  should 
like  to  ask  him,  he  having  given  us  such  a  luminous  exposition  of  the 
Constitution,  what  is  the  relation  between  the  President  and  the  Foreign 
Relations  Committee  of  the  Senate?  Do  those  men  never  advise? 

Mr.  SPOONER.     Is  the  Senator  serious  in  putting  to  me  that  question  ? 

Mr.  TILLMAN.     I  am. 

Mr.  SPOONER.     I  will  give  it  a  serious  answer. 

The  relation  of  members  of  the  Foreign  Relations  Committee  to  the 
executive  department  of  the  Government  in  its  relation  to  foreign  re- 
lations is  precisely  the  relation  which  the  Senator  from  South  Carolina 
and  his  colleagues  sustain  to  the  executive  department  in  its  relation 
to  foreign  relations.  The  Committee  on  Foreign  Relations,  like  the 
other  committees  of  this  body,  is  not  an  independent  entity.  Its  mem- 
bers are  Senators  who  are  designated  by  the  body  to  study  and  report 
upon  certain  subjects,  and  the  committee  therefore  is  but  the  servant 
of  the  Senate,  as  all  other  committees  are.  A  member  of  the  Foreign 
Relations  Committee,  as  a  Senator,  in  his  relation  to  the  Senate  and 
executive  department  is  only  a  Senator,  just  as  those  who  are  not  on 
that  committee  are  Senators. 

Of  course,  it  will  sometimes  happen  that  members  of  the  Foreign  Re- 
lations Committee,  charged  by  the  Senate  with  that  particular  subject, 
will  obtain  information  as  servants  of  the  Senate,  in  order  to  bring  it 
to  the  attention  of  the  Senate,  which  other  Senators  might  not  seek; 
but  that  is  all. 

Mr.  BEVERTDGE.     It  is  a  matter  of  expediency. 

Mr.  SPOONER.  It  is  not  a  matter  of  expediency.  It  is  a  matter  of 
industry,  and  a  wise  attempt  at  least  to  discharge  the  duty  which  the 
Senate  has  committed  to  them. 

Mr.  BEVERLDGE.  They  are  not  compelled  to  do  it  by  the 
Constitution. 

Mr.  SPOONER.     Oh,  no. 

Mr.  LODGE.     Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to 
the  Senator  from  Massachusetts? 

Mr.  LODGE.  I  merely  wish  to  remind  him  of  a  fact  with  which  he 
no  doubt  is  very  familiar,  that  in  the  Administration  of  Mr.  Madison 
the  Senate  deputed  a  committee  to  see  him  in  regard  to  the  appoint- 


86  AMERICAN   FEDERAL   GOVERNMENT 

ment  of  a  minister  to  Sweden,  I  think,  and  he  replied  that  he  could 
recognize  no  committee  of  the  Senate,  that  his  relations  were  exclusively 
with  the  Senate.  I  have  no  doubt  the  Senator  intended  to  recall  that, 
but  as  he  stated  the  exact  relations  as  he  understood  them,  it  seemed  to 
bear  on  that  point. 

Mr.  SPOONER.  I  did  not  recall  it;  I  am  obliged  to  the  Senator  for 
recalling  it ;  but  I  think  I  covered  it  — 

Mr.  LODGE.     You  did,  entirely. 

Mr.  SPOONER.  By  saying  that  members  of  a  committee  have  no  re- 
lations to  any  Department  of  the  Government,  simply  being  servants  of 
the  Senate,  which  has  the  relation  to  the  Departments  of  the  Government. 

Mr.  TILLMAN.  If  the  Senator  will  permit  me,  I  will  explain  why  I 
asked  the  question. 

Mr.  SPOONER.     Certainly. 

Mr.  TILLMAN.  The  other  day  I  submitted  some  observations  on  the 
Santo  Domingo  business.  In  them  I  brought  out  a  statement  from  the 
New  York  Sun,  which  is  in  the  Record  of  the  iyth  that  the  present 
arrangement  which  is  being  carried  out  in  Santo  Domingo  had  the 
approval  of  the  Senator  from  Wisconsin  and  the  Senator  from  Massa- 
chusetts, both  of  whom  are  members  of  the  Committee  on  Foreign 
Relations,  or  rather  that  those  Senators  having  objected  previously, 
acquiesced  in  it;  in  other  words,  that  they  advised  with  the  President 
and  surrendered  their  own  convictions  as  to  the  inadvisability  of  his 
action  there.  The  statement  goes  on  to  say  that  — 

Mr.  SPOONER.  I  have  that  here.  The  Senator  need  not  worry  him- 
self about  that. 

Mr.  TILLMAN.  The  Senator  is  not  worrying  himself  about  anything ; 
but  I  was  just  trying  to  get  the  Senator  to  give  us,  if  he  will  be  so  kind, 
the  relationship  between  the  Foreign  Relations  Committee  and  the 
President.  He  says  they  have  nothing  whatever  to  do  with  it,  and  yet 
the  members  of  this  committee  of  the  Administration  party  are  caught 
in  the  act  of  having  something  to  do  with  it  in  advising  and  objecting 
and  all  that  kind  of  thing,  unless  the  Senator  denies  the  statement.  If 
he  denies  it,  I  am  done  with  it. 

Mr.  SPOONER.     I  think  the  Senator  will  be  done  with  it  — 

Mr.  TILLMAN.     I  will  be  done  with  it  anyway. 

Mr.  SPOONER.     Because  I  will  deal  with  that. 

Mr.  TILLMAN.  Will  the  Senator  pardon  me  for  a  little  common- 
sense  observation  there? 

Mr.  SPOONER.  I  may  wish  to  judge  for  myself  as  to  the  common 
sense  of  it. 

Mr.  TILLMAN.  I  claim  it  is  common  sense.  I  do  not  ask  the  Sena- 
tor's indorsement  of  it  as  being  common  sense.  I  assert  that  it  is  common 
sense. 

Mr.  SPOONER.     I  must  indorse  it  on  that  assertion. 


THE  TREATY-MAKING   POWER  87 

Mr.  TILLMAN.  Very  well.  Granting  the  Senator's  contention  to  be 
correct,  and  knowing,  as  the  Senator  must  acknowledge,  that  a  treaty 
or  any  agreement  made  by  the  President  must  be  submitted  to  the 
Senate  for  ratification,  and  it  is  first  referred  to  the  Committee  on  Foreign 
Relations,  and  that  committee's  attitude  will  almost  certainly  decide 
its  fate,  I  ask  the  Senator  whether,  as  a  matter  of  common  sense,  any 
President  would  not  prefer  to  have  the  advice  of  his  Senatorial  friends  — 
advice,  the  constitutional  word  "  advice  "  —  and  has  not  the  Senator  given 
that  advice  in  his  relationship  of  leader  in  the  Senate  and  a  member 
of  the  Foreign  Relations  Committee  and  a  personal  friend  of  the 
President? 

Mr.  SPOONER.     Is  the  Senator  through  ? 

Mr.  TILLMAN.     Yes;  I  am  through  for  the  time  being. 

Mr.  SPOONER.  I  was  about  to  say  that  being  held  down  by  constitu- 
tional obligations  and  by  the  rule  of  courtesy  which  prevails  in  the 
Senate,  I  feel  bound  to  say  that  the  Senator's  question  is  a  common- 
sense  question  — 

Mr.  TLLLMAN.     For  which  I  am  very  deeply  grateful. 

Mr.  SPOONER.     Only  as  a  matter  of  politeness. 

Mr.  TLLLMAN.     Then  the  Senator  convicts  himself  of  insincerity. 

Mr.  SPOONER.     I  do  not. 

The  VICE-PRESIDENT.  The  Chair  calls  the  attention  of  Senators  to 
the  fact  that  in  speaking  they  must  address  the  Chair.  The  Senator 
from  Wisconsin  will  proceed. 

Mr.  SPOONER.  Now,  if  the  Senator  from  South  Carolina  will  possess 
his  soul  in  patience,  I  wish  to  hurry  through. 

Mr.  TILLMAN.  Do  not  be  in  too  big  a  hurry  lest  we  lose  something 
nice. 

Mr.  SPOONER.  I  will  in  time  reach  the  phase  of  the  subject  to  which 
the  Senator  has  been  alluding. 

The  President  is  so  supreme  under  the  Constitution  in  the  matter  of 
treaties,  excluding  only  the  Senate's  ratification,  that  he  may  negotiate  a 
treaty,  he  may  send  it  to  the  Senate,  it  may  receive  by  way  of  "advice  and 
consent"  the  unanimous  judgment  of  the  Senate  that  it  is  in  the  highest 
degree  for  the  public  interest,  and  yet  the  President  is  as  free  when  it  is 
sent  back  to  the  White  House  with  resolution  of  ratification  attached, 
to  put  it  in  his  desk  never  again  to  see  the  light  of  day  as  he  was 
free  to  determine  in  the  first  instance  whether  he  would  or  would  not 
negotiate  it.  That  power  is  not  expressly  given  to  the  President  by 
the  Constitution,  but  it  inheres  in  the  executive  power  conferred  upon 
him  to  conduct  our  foreign  relations,  and  it  is  a  power  which  inheres  in 
him  as  the  sole  organ  under  the  Constitution  through  whom  our  foreign 
relations  and  diplomatic  intercourse  are  conducted.  Out  of  public 
necessity  the  President  should  be  permitted  to  pocket  a  treaty,  no  matter 
if  every  member  of  the  Senate  thought  he  ought  to  exchange  the  ratifica- 


88  AMERICAN  FEDERAL   GOVERNMENT 

tion.  Why  ?  Because  the  President,  through  the  ambassadors,  ministers, 
consuls,  and  all  of  the  agencies  of  the  Government,  explores  sources  of 
information  everywhere,  it  is  his  business  to  know  whether  anything  has 
occurred  since  the  Senate  acted  upon  the  treaty  which  would  render  it 
for  the  public  interest  that  the  ratifications  be  not  exchanged.  And  he 
is  empowered  to  withhold  exchange  of  ratifications,  if  upon  later  knowl- 
edge he  deems  it  for  the  public  interest  so  to  do. 

The  conduct  of  our  foreign  relations  is  a  function  which  requires  quick 
initiative,  and  the  Senate  is  often  in  vacation.  It  is  a  power  that  requires 
celerity.  One  course  of  action  may  be  demanded  to-night,  another  in 
the  morning.  It  requires  also  secrecy;  and  that  element  is  not  omitted 
by  the  commentators  on  the  Constitution  as  having  been  deemed  by  the 
framers  of  the  most  vital  importance.  It  is  too  obvious  to  make  elabora- 
tion pardonable. 

We  ratified  the  arbitration  treaty  unanimously,  I  believe.  The  Presi- 
dent, in  the  exercise  of  the  power  which  no  one  can  dispute,  pocketed  it. 
The  President  may  negotiate  and  sign  a  proposed  treaty,  and  not  send  it 
to  the  Senate.  In  such  case  what  would  be  thought  of  a  resolution  ask- 
ing him  to  inform  the  Senate  whether  he  had  negotiated  such  a  proposed 
treaty,  and  why  he  had  not  sent  it  to  the  Senate  ?  Having  sent  a  treaty  to 
the  Senate,  he  may  withdraw  it  the  next  day. 

Mr.  President,  the  three  great  coordinate  branches  of  this  Government 
are  made  by  the  Constitution  independent  of  each  other  except  where 
the  Constitution  provides  otherwise.  We  have  no  right  to  assume  the  ex- 
ercise of  any  executive  power  save  under  the  Constitution.  We  can  not 
assume  judicial  functions.  The  President  may  not  assume  judicial 
functions.  The  President  may  not  assume  legislative  functions.  We  as 
the  Senate,  a  part  of  the  treaty-making  power,  have  no  more  right  under 
the  Constitution  to  invade  the  prerogative  of  the  President  to  deal  with 
our  foreign  relations,  to  conduct  them,  to  negotiate  treaties,  and  that  is 
not  all  —  the  conduct  of  our  foreign  relations  is  not  limited  to  the 
negotiation  of  treaties  —  we  have  no  more  right  under  the  Constitu- 
tion to  invade  that  prerogative  than  he  has  to  invade  the  prerogative 
of  legislation. 

Mr.  MORGAN.    If  the  Senator  will  allow  me  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to  the 
Senator  from  Alabama  ? 

Mr.  SPOONER.    Certainly. 

Mr.  MORGAN.  I  wish  to  suggest  to  him  that  he  is  perhaps  using  the 
word  "  prerogative "  in  too  broad  a  sense.  I  do  not  understand  that  the 
President  has  any  prerogatives  under  the  Constitution. 

Mr.  SPOONER.    What  is  the  power  to  pardon? 

Mr.  MORGAN.    That  is  a  power  derived  from  the  Constitution. 

Mr.  SPOONER.    That  begs  the  question. 

Mr.  MORGAN.    It  is  not  a  prerogative  of  royalty. 


THE  TREATY-MAKING   POWER  89 

Mr.  SPOONER.  Kings  have  the  power  of  pardon,  which  is  a  pre- 
rogative of  royalty.  The  Senator,  however,  is  right  in  the  last  analysis. 
This  is  not  a  kingly  government. 

Mr.  MORGAN.    That  is  right. 

Mr.  SPOONER.  In  the  most  technical  sense  I  cheerfully  yield  to  him 
that  this  word  is  not  a  fit  word  for  this  atmosphere,  but  I  have  heard  a 
thousand  times  talk  here  about  the  prerogatives  of  the  Senate. 

Mr.  MORGAN.    That  was  just  a  thousand  times  too  many. 

Mr.  SPOONER.    Strictly,  I  agree  with  the  Senator. 

The  act  creating  the  Department  of  State,  in  1789,  was  an  exception  to 
the  acts  creating  the  other  Departments  of  the  Government.  I  will  not 
stop  to  refer  to  the  language  of  it  or  to  any  of  the  discussions  in  regard  to 
it,  but  it  is  a  Department  that  is  not  required  to  make  any  reports  to  Con- 
gress. It  is  a  Department  which  from  the  beginning  the  Senate  has  never 
assumed  the  right  to  direct  or  control,  except  as  to  clearly  defined  mat- 
ters relating  to  duty  imposed  by  statute  and  not  connected  with  the  con- 
duct of  our  foreign  relations. 

We  direct  all  the  other  heads  of  Departments  to  transmit  to  the  Senate 
designated  papers  or  information.  We  do  not  address  directions  to  the 
Secretary  of  State,  nor  do  we  direct  requests,  even,  to  the  Secretary  of 
State.  We  direct  requests  to  the  real  head  of  that  Department,  the  Presi- 
dent of  the  United  States,  and,  as  a  matter  of  courtesy,  we  add  the  quali- 
fying words,  "if  in  his  judgment  not  incompatible  with  the  public 
interest." 

What  does  the  conduct  of  our  foreign  relations  involve?  Does  it  in- 
volve simply,  do  Senators  think,  the  negotiation  of  treaties  ?  It  involves 
keeping  a  watchful  eye  upon  every  point  under  the  bending  sky  where 
an  American  interest  is  involved,  where  the  American  flag  and  citizens 
of  the  United  States  are  to  be  found  on  sea  and  on  land,  every  movement 
in  foreign  courts  which  might  invade  some  American  interest.  It  involves 
intercourse,  oral  and  written,  conferences,  administrative  agreements 
and  understandings,  not  included  in  the  generic  word  "treaty,"  as  used 
in  the  Constitution.  All  treaties  are  agreements,  but  all  international 
agreements  and  understandings  are  not  "treaties."  (See  opinion  Taney, 
C.  J.,  in  Holmes  v.  Jennison,  14  Peters,  570-573.) 

Speaking  of  the  power  of  the  President  under  the  Constitution  over 
foreign  relations,  Mr.  Justice  McLean  said  (Williams  v.  Suffolk  Insur- 
ance Company,  13  Peters,  415) : 

There  can  be  no  doubt  that  when  the  executive  branch  of  the  Government, 
which  is  charged  with  our  foreign  relations,  shall  in  its  correspondence  with  a 
foreign  nation  assume  a  fact  in  regard  to  the  sovereignty  of  any  island  or  country 
it  is  conclusive  on  the  judicial  department,  and  in  this  view  it  is  not  material  to 
inquire,  nor  is  it  the  province  of  the  court  to  determine,  whether  the  Executive 
be  right  or  wrong.  It  is  enough  to  know  that  in  the  exercise  of  his  constitutional 
Junctions  he  has  decided  the  question.  Having  done  this  under  the  responsibility 


go  AMERICAN   FEDERAL   GOVERNMENT 

which  belonged  to  him,  it  is  obligatory  on  the  people  and  the  Government  of 
the  Union.  (See  Duran  v.  Rollins,  4  Blatch.,  Circuit  Court,  448,  opinion  by 
Mr.  Justice  Nelson.) 

Professor  Pomeroy,  section  671,  third  edition,  says: 

The  President  is  the  sole  organ  of  communication  between  our  own  and  all 
other  governments.  Foreign  ministers  and  ambassadors  are  accredited  to  him ; 
to  him  they  present  their  credentials  and  pay  their  formal  official  visits.  The 
communications  which  they  make,  and  the  negotiations  which  they  conduct,  are, 
in  fact,  made  and  conducted  to  and  with  the  Secretary  of  State,  but  only  as  that 
officer  is  the  direct  and  personal  organ  of  the  President.  All  replies  of  the 
Secretary  are  supposed  to  be  suggested  by  the  Chief  Magistrate,  and  he  may, 
and  doubtless  often  does,  take  an  actual  and  leading  part  in  the  negotiation. 
Our  own  ministers  are  nominated  by  the  President.  When  appointed  they 
communicate  alone  with  the  Executive  through  the  State  Department.  In- 
structions are  sent  to  them,  despatches  forwarded,  demands  made,  claims  in- 
sisted on,  principles  adopted  and  enforced  as  the  President  deems  proper.  How 
far  he  will  actually  interfere  with  the  Secretary  of  State,  and  how  far  leave  that 
officer  to  the  exercise  of  his  own  discretion,  must  depend  upon  his  own  sense  of 
duty  and  propriety  and  the  completeness  of  his  own  convictions. 

SEC.  672.  Over  all  these  proceedings  the  Congress  has  absolutely  no  control. 
The  correspondence  and  negotiations  may  be,  and  generally  are,  conducted 
secretly;  and  although  it  is  customary  for  the  President  to  communicate  de- 
spatches to  the  legislature,  this  is  never  done  until  after  their  transmission,  and, 
if  necessary,  they  may  be  indefinitely  withheld  when  the  President  deems  that 
the  public  interests  require  it.  Congress  may  pass  resolves  in  relation  to 
questions  of  an  international  character,  but  these  can  only  have  a  certain  moral 
weight;  they  have  no  legal  effect;  they  can  not  bind  the  Executive.  The 
necessity  for  this  is  evident.  Negotiations  generally  require  a  certain  degree  of 
secrecy ;  one  mind  and  will  must  always  be  more  efficient  in  such  matters  than 
a  large  deliberative  assembly.  The  President  has  thus  intrusted  to  him  a  most 
momentous  power,  and  one  which  he  can  not  entirely  delegate.  Our  foreign 
ministers  must  undoubtedly  use  their  own  judgment  and  discretion  within 
narrow  limits,  but  in  all  important  matters  hey  receive  definite  and  positive 
instructions  from  home.  The  magnitude  of  this  function  may  be  easily  illus- 
trated The  President  can  not  declare  war;  Congress  alone  possesses  this 
attribute.  But  the  President  may,  without  any  possibility  of  hindrance  from 
the  legislature,  so  conduct  the  foreign  intercourse,  the  diplomatic  negotiations 
with  other  governments,  as  to  force  a  war,  as  to  compel  another  nation  to  take 
the  initiative;  and  that  step  once  taken,  the  challenge  can  not  be  refused.  How 
easily  might  the  Executive  have  plunged  us  into  a  war  with  Great  Britain  by  a 
single  despatch  in  answer  to  the  demands  of  the  British  cabinet  made  in  relation 
to  the  affair  of  the  Trent.  How  easily  might  he  have  provoked  a  condition  of 
active  hostilities  with  France  by  the  form  and  character  of  the  reclamations 
made  in  regard  to  the  occupation  of  Mexico. 

I  repeat  that  the  Executive  Department,  by  means  of  this  branch  of  its  power 
over  foreign  relations,  holds  in  its  keeping  the  safety,  welfare,  and  even  per- 
manence of  our  internal  and  domestic  institutions.  And  in  wielding  this  power 
it  is  untrammeled  by  any  other  department  of  the  Government;  no  other  influ- 


THE  TREATY-MAKING   POWER  91 

ence  than  a  moral  one  can  control  or  curb  it;  its  acts  are  political,  and  its 
responsibility  is  only  political. 

SEC.  673.  But  the  other  branch  of  this  Executive  function —  the  treaty- 
making  power —  is  even  more  important.  The  language  by  which  this  au- 
thority is  conferred  and  described  is  peculiar.  The  President  shall  have  power, 
by  and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties,  provided  that 
two-thirds  of  the  Senators  present  concur.  All  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States  shall  be  the  supreme  law  of  the 
land.  The  President  must,  of  course,  take  the  initiative  in  making  all  treaties. 

Congress,  as  such,  has  nothing  to  say  in  the  matter.  As  a  treaty  is  necessarily 
the  result  of  negotiation,  and  as  such  negotiation  is  exclusively  within  the  prov- 
ince of  the  President,  the  Senate  having  not  the  least  authority  to  communicate 
with  a  foreign  government,  it  is  absolutely  impossible  for  that  body  to  dictate  a 
treaty  or  to  force  the  Chief  Magistrate  into  any  particular  line  of  action.  He 
must  negotiate  the  treaty,  make  all  the  stipulations,  determine  all  the  subject- 
matter,  and  then  submit  the  perfected  convention  to  the  Senate  for  ratification 
or  rejection.  They  must  take  his  finished  work  and  approve  or  disapprove. 

My  friend  from  Georgia  [Mr.  Bacon]  seemed  to  think  it  extraordinary 
and  novel  that  the  President  in  exercising  this  constitutional  power  to 
conduct  our  foreign  relations,  should  send  delegates  or  representatives 
to  the  Moroccan  conference.  Where  can  there  be  found  any  warrant  for 
denying  that  right  ?  I  think  the  Senator  did  not  deny  the  right.  We  have 
been  engaged  in  conferences  before. 

Mr.  BACON.    Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to  the 
Senator  from  Georgia? 

Mr.  SPOONER.    Certainly. 

Mr.  BACON.    I  do  not  desire  to  interrupt  the  Senator. 

Mr.  SPOONER.    I  have  no  objection. 

Mr.  BACON.  I  desire  not  to  do  so.  I  prefer  to  answer  the  Senator 
afterwards,  if  I  have  an  opportunity,  rather  than  to  take  it  up  by  piece- 
meal. Therefore  I  only  interrupt  him  in  this  instance  because  he  sug- 
gests what  he  understands  to  be  my  position,  and  it  will  require  some 
little  more  elaboration  than  to  answer  categorically.  So  I  will  not  now 
interrupt  the  Senator,  but  I  will  endeavor,  if  I  have  the  opportunity,  to 
express  as  fully  and  as  clearly  as  I  can  what  is  my  exact  position  about 
this  matter. 

Mr.  SPOONER.  But  I  think  I  misstated  the  Senator's  position.  I  must 
correct  it.  Of  course,  it  was  an  inadvertence.  The  Senator  did  not  deny 
the  right  of  the  President. 

[At  this  point  the  expiration  of  the  morning  hour  was  announced  by  the 
Vice-President,  and  the  unfinished  business  was  laid  aside  temporarily.] 


92  AMERICAN   FEDERAL   GOVERNMENT 


SPEECH    OF    SENATOR   BACON1 

MR.  BACON  said: 

Mr.  President :  I  have  already  addressed  the  Senate  at  some  length 
upon  the  subject  of  the  policy  and  propriety  of  sending  delegates  to  the 
Algeciras  Moroccan  conference.  It  had  not  been  my  purpose  to  ask 
again  the  indulgence  of  the  Senate  upon  this  subject  or  upon  questions 
which  are  nearly  connected  therewith.  It  has,  however,  happened  that 
in  the  progress  of  the  debate  upon  that  subject  and  also  on  the  subject  of 
the  Santo  Domingo  treaty  certain  propositions  have  been  announced  on 
the  floor  of  the  Senate  and  have  been  very  earnestly  and  very  ably  dis- 
cussed by  learned  and  distinguished  Senators,  magnifying  the  powers  of 
the  President  and  minimizing  the  powers  of  the  Senate,  to  which  I  can 
not  give  my  assent  and  to  which  I  ask  the  further  indulgence  of  the  Senate 
that  I  may  make  reply. 

Before  proceeding,  Mr.  President,  I  desire  to  say  that  in  submitting 
an  argument  to-day  on  this  subject  I  will  endeavor  to  make  it  impersonal, 
because  I  consider  it  a  very  grave  question,  involving  the  relative  rights 
and  prerogatives  of  the  President  of  the  United  States  and  of  the  Senate 
—  a  question  important  to  be  settled  correctly  and,  if  possible,  without 
reference  to  partisan  feeling  or  bias.  I  think  I  may  possibly  with  pro- 
priety repeat  what  I  have  said  upon  a  former  occasion,  that  there  is  no 
justification  for  the  statement  which  has  been  more  than  once  made  upon 
the  floor  of  the  Senate  that  the  discussion  of  this  question  is  in  any  man- 
ner an  assault  upon  the  present  occupant  of  the  executive  chair.  Legiti- 
mate and  respectful  discussion,  not  only  of  the  rights  and  prerogatives 
of  the  Executive,  but  of  the  official  acts  of  the  Executive  relating  to  ques- 
tions of  such  rights  and  prerogatives,  can  not  in  any  manner  be  construed 
into  a  personal  assault,  and  it  occurs  to  me,  Mr.  President,  that  the  reit- 
eration of  the  suggestion  —  to  give  it  no  stronger  term  —  that  such  dis- 
cussion is  an  assault  upon  the  President  —  and  sometimes  stronger  terms 
have  been  used  —  must  imply  a  want  of  confidence  in  their  own  conten- 
tion by  those  who  seek  to  fortify  their  position  by  such  suggestion. 

The  distinguished  Senator  from  Wisconsin  [Mr.  Spooner]  announces, 
as  I  understand  him,  the  following  proposition :  That  the  negotiation  of 
a  proposed  treaty  and  every  phase  of  the  work  of  considering  and  deter- 
mining what  shall  be  the  subject  and  terms  of  a  treaty  are,  up  to  and  in- 
cluding the  reaching  of  an  agreement  with  a  foreign  power  and  until  the 
proposed  treaty  is  submitted  to  the  Senate  for  final  ratification  or  rejec- 
tion, matters  within  the  sole  and  exclusive  right  and  power  of  the  Presi- 
dent; and  that  the  jurisdiction  of  the  Senate  does  not  attach  in  any 
manner,  and  that  no  power  or  duty  or  right  of  the  Senate  begins  until  the 
President  shall  have  negotiated  a  proposed  treaty  with  a  foreign  power, 

1  Congr.  Record,  Feb.  6,  1906.     Reported  Feb.  12,  1906. 


THE  TREATY-MAKING   POWER  93 

shall  have  agreed  with  the  foreign  power  on  the  terms  of  the  same,  and 
shall  have  sent  it  to  the  Senate ;  and  that  for  the  Senate  to  attempt  either 
by  inquiry  or  suggestion  to  have  part  or  lot  in  such  work  prior  to  the  sub- 
mission to  the  Senate,  is  an  intrusion  upon  the  exclusive  domain  and 
jurisdiction  of  the  President  of  the  United  States. 

As  to  whether  or  not  he  is  correct  in  that  construction  of  the  powers  of 
the  President  and  the  want  of  the  power  in  the  Senate,  must  depend  upon 
the  language  of  the  Constitution  of  the  United  States.  Fortunately,  so 
much  of  the  language  of  the  Constitution  as  relates  to  that  is  within  a 
very  small  compass ;  it  is  in  one  sentence.  It  is  the  second  paragraph  of 
the  second  section  of  the  second  article  of  the  Constitution,  and  it  is  in 
these  words: 

He  shall  have  Power,  — 

Speaking  of  the  President  of  the  United  States  — 

He  shall  have  Power  by  and  with  the  Advice  and  Consent  of  the  Senate  to 
make  Treaties,  provided  two-thirds  of  the  Senators  present  concur. 

That  is  all  there  is  in  the  Constitution  as  to  the  power  of  the  President 
to  make  treaties  and  as  to  the  right  and  power  of  the  Senate  to  participate 
in  the  work  of  making  treaties. 

Now,  Mr.  President,  it.  will  be  seen  that  in  that  language  the  word 
"negotiate"  does  not  occur.  There  is  no  separate,  express  grant  of 
power  to  negotiate  a  treaty.  It  is  necessarily  true,  however,  that  the 
power  to  negotiate  a  treaty  is  an  implied  power  involved  in  that  language; 
in  other  words,  the  power  "to  make"  a  treaty  necessarily  implies  the 
power  to  negotiate  a  treaty.  But  there  may  be  a  very  great  difference  in 
opinion  as  to  what  is  the  meaning  of  the  word  "negotiate,"  if  we  assume 
it  and  concede  it  to  be  an  implied  power  found  in  that  language.  So  far 
as  the  power  to  suggest  a  treaty  to  a  foreign  power  is  concerned,  or  to  re- 1 
ceive  a  suggestion  from  a  foreign  power  that  a  certain  treaty  should  be 
made,  or  to  discuss  with  a  foreign  power  the  subject  or  the  terms  of  a 
proposed  treaty,  undoubtedly  the  power  to  negotiate  within  that  narrow 
limit  is  one  which  can  only  be  exercised  by  the  President,  because  he 
alone  under  this  clause  can  have  direct  communication  with  the  foreign 
power.  No  other  officer  or  authority  on  the  part  of  the  United  States  can 
submit  a  proposed  treaty  to  a  foreign  power.  No  other  authority  can 
discuss  with  a  foreign  power  the  terms  of  a  proposed  treaty,  or  come  to  a 
preliminary  agreement  with  the  foreign  power  regarding  the  same. 
Within  this  restricted  sense  the  implied  power  to  negotiate  a  proposed 
treaty  is  in  the  President  alone. 

But  it  is  evident  that  the  learned  Senator  in  this  discussion  does  not 
confine  his  understanding  of  the  word  "negotiate"  to  such  narrow  limits 
in  defining  the  power  of  the  President  in  the  making  of  treaties.  Evi- 


94  AMERICAN   FEDERAL   GOVERNMENT 

dently  the  Senator  intends  to  include  in  the  exclusive  power  to  "  nego- 
tiate" a  proposed  treaty,  the  exclusive  power  to  do  everything  connected 
with  the  policy  or  impolicy  of  a  treaty  prior  to  its  actual  submission  to 
the  Senate  for  its  ratification.  In  other  words,  the  Senator's  proposition 
is  that  under  this  implied  power  to  "negotiate"  everything  in  the  way 
of  consideration  of  the  advantage  or  the  disadvantage,  or  of  the  propriety 
or  the  policy  of  making  a  treaty,  or  of  its  terms,  is  a  matter  for  the  exclu- 
sive suggestion  and  deliberation  and  determination  of  the  President,  and 
that  any  suggestion  or  inquiry  or  advice  on  the  part  of  the  Senate  prior  to 
such  submission  is  gratuitous  and  intrusive,  and,  as  has  been  suggested, 
even  insulting  to  the  President.  The  radical  and  extreme  position  of  the 
Senator  in  this  regard  is  best  understood  when  the  fact  is  known  that  his 
utterance  above  quoted  is  caused  by  the  introduction  of  a  resolution  ask- 
ing information  concerning  the  instructions  given  to  the  delegates 
appointed  to  the  Algeciras  conference.  That  resolution  the  Senator  con- 
demns as  intrusive  upon  the  exclusive  jurisdiction  of  the  President.  Ac- 
cording to  the  contention  of  the  learned  Senator,  alone  in  the  brain  of  the 
President,  alone  in  his  suggestion  and  deliberation,  and  alone  in  his 
judgment  must  be  evolved  and  shaped  up  the  policies  and  measures, 
which,  if  they  become  law,  are  to  be  the  supreme  law  of  the  land. 

According  to  that  contention,  the  Senate  has  nothing  to  do  with  it  — 
no  concern,  no  right  to  consider,  no  right  to  be  heard,  no  right  to  in- 
quire, no  right  to  advise  —  until  the  President  shall  have  thus  perfected 
it  according  to  his  judgment  and  submitted  it  to  the  Senate,  to  receive 
at  its  hands  a  perfunctory  —  often,  I  should  say,  a  perfunctory  —  reply 
of  "yes"  or  "no";  and  according  to  that  contention  to  proceed  beyond 
that  is  an  intrusion  upon  the  exclusive  domain  and  jurisdiction  of  the 
President. 

Mr.  President,  that  proposition  is  not  sustained  either  by  the  letter 
or  by  the  spirit  of  the  Constitution  or  by  the  history  of  the  treaty-making 
,  power  as  found  in  the  history  of  the  convention  which  framed  the  Con- 
stitution. On  the  contrary,  they  all,  and  the  history  as  well  of  the  adop- 
tion of  this  provision  of  the  Constitution  as  found  in  the  debates  of  the 
constitutional  convention,  combine  to  establish  the  proposition  that  in 
the  making  of  treaties  it  is  proper  for  the  Senate  to  advise  at  all  stages. 
Upon  the  very  surface  of  it  lies  the  oft-repeated  suggestion  that,  if  that 
were  the  case,  the  Constitution  would  limit  itself  to  the  term  "consent." 

Mr.  SPOONER.     Limit  itself  to  what? 

Mr.  BACON.  I  say,  if  that  were  the  correct  construction,  there  is 
the  oft-repeated  suggestion  that  if  it  had  been  the  intention  of  the  framers 
of  the  Constitution  to  limit  the  action  and  function  of  the  Senate  solely 
to  the  power  to  ratify  or  to  reject,  the  language  of  the  Constitution  would 
not  have  been  "advise  and  consent,"  but  the  language  would  have  been 
"consent,"  because  there  is  no  reason  why  the  word  "advise"  should 
be  given  to  add  to  or  explain  the  meaning  of  the  word  "consent."  We 


THE  TREATY-MAKING   POWER  95 

do  not  advise  men  after  they  have  made  up  their  minds  and  after  they 
have  acted;  we  advise  men  while  they  are  considering,  while  they  are 
deliberating,  and  before  they  have  determined,  and  before  they  have 
acted. 

As  I  have  already  said,  Mr.  President,  there  is  no  direct,  express, 
separate  grant  of  power  to  negotiate.  The  entire  power  is  the  power 
to  make  treaties ;  and  yet  the  learned  Senator  would  have  us  divide  that 
power  so  that  the  term  "to  make"  should  be  construed  to  mean,  in  the 
first  place,  in  one  division  "to  negotiate"  and  in  another  division  "to 
conclude."  But  there  is  nothing  in  the  words  of  the  Constitution  to 
justify  any  such  division  as  that.  It  is  one  indivisible  power  "to  make," 
and  in  the  entire  power  "to  make"  the  Senate  is  given  full  participation 
in  advising  and  consenting. 

The  contention  that  the  power  of  the  President  includes  everything 
up  to  the  time  of  the  submission  of  the  proposed  treaty  to  the  Senate 
might  be  sustained  if  the  language  of  the  Constitution  were  that  "the 
President  of  the  United  States  should  have  power  to  negotiate  and, 
with  the  advice  and  consent  of  the  Senate,  to  make  treaties."  Then  it 
would  indicate  a  separate  function ;  then  it  would  indicate  a  first  division 
of  the  duty,  to  negotiate,  the  jurisdiction  of  which  was  confided  entirely 
and  solely  to  the  President;  and  the  second  division,  to  make,  one  in 
which  the  President  and  the  Senate  together  should  act. 

But  the  language  of  the  Constitution  is,  "He  shall  have  power,  by 
and  with  the  consent  of  the  Senate,  to  make  treaties,"  which  plainly 
indicates  not  that  the  Senate  should  be  limited  to  saying  yes  or  no  to  a 
perfected  and  finished  work  when  presented  to  it  by  the  President,  but 
rather  the  assistance  of  the  Senate,  the  advice  and  cooperation  of  the 
Senate  in  the  determination  as  to  the  propriety  and  policies  of  proposed 
treaties  and  also  the  terms  and  provisions  they  should  contain.  But 
the  word  "negotiate"  is  omitted  before  the  words  "to  make."  That 
is  not  an  accidental  omission.  There  was  design  in  it.  Aside  from  the 
fact  that  there  is  no  ground  upon  which  to  predicate  the  suggestion  that 
it  was  an  accidental  omission,  the  words  used  by  the  framers  of  the  Con- 
stitution in  the  very  next  clause  really  only  divided  from  it  by  a  semi- 
colon, prove  that  they  were  weighing  carefully  the  language  when  they 
conferred  the  power  upon  the  President  of  the  United  States.  Separated 
from  it  only  by  a  semicolon  is  this  language  —  I  will  read  the  entire 
clause,  part  of  which  I  have  already  read: 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of  the  Senators  present  concur;  — 

Then  follows  the  semicolon.     Then  the  language  proceeds: 

and  he  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  etc. 


96  AMERICAN  FEDERAL   GOVERNMENT 

There  it  was  the  evidently  distinct  purpose  to  divide  the  duty  and  to 
confer  in  the  first  part  of  that  division  an  exclusive  function  and  juris- 
diction upon  the  President  of  the  United  States: 

He  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint. 

Showing  that  the  purpose  was  that  up  to  the  time  it  was  submitted 
to  the  Senate,  the  Senate  had  no  function  in  the  matter  of  appointment, 
and  that  the  function  of  the  Senate  was  limited  to  advising  and  con- 
senting to  the  nomination  previously  made  by  the  President  in  the 
discharge  of  a  function  and  of  a  jurisdiction  exclusively  confided  to 
him. 

Can  it  be  said  that  the  framers  of  the  Constitution  of  the  United  States 
in  writing  a  clause,  or  two  parts  of  the  same  clause,  were  careless  in  the 
use  of  language  when  they  were  conferring  the  great  power  of  treaty 
making;  that  they  intended  to  say  that  the  President  should  have  the 
exclusive  function  up  to  the  time  of  the  submission  of  the  treaty  to  the 
Senate,  and  that  the  duty  and  the  power  of  the  Senate,  as  the  Senator 
from  Wisconsin  has  said,  should  only  begin  when  the  President  had  so 
done,  and  that  they  used  this  language  as  found  in  the  Constitution, 
leaving  to  be  implied  only  the  construction  contended  for;  and  then 
thereafter,  in  the  less  important  matter  of  the  appointing  of  officers, 
should  have  been  critical  in  the  use  of  language,  leaving  nothing  to  im- 
plication, and  should  have  said  "he  shall  nominate,"  and  then  added 
"and  thereafter"  —  I  interpolate  the  word  "thereafter"  -  "  and  there- 
after, by  and  with  the  advice  and  consent  of  the  Senate,  shall  appoint"? 
Mr.  President,  it  is  incredible. 

******** 

The  Senator  from  Wisconsin  in  his  argument  said  that  the  President 
was  supreme  —  he  used  the  word  "supreme"  —in  the  making  of 
treaties  to  the  extent  that  even  after  a  treaty  was  submitted  to  the  Senate 
and  ratified  by  the  Senate,  the  President  could  put  it  in  his  pocket  and  not 
promulgate  it  or  exchange  ratifications. 

No  doubt  that  is  true,  and  in  the  same  way  when  the  President  sends 
a  proposed  treaty  to  the  Senate,  the  Senate,  if  it  sees  proper  to  do  so,  can 
treat  it  without  any  attention  whatever  and  not  even  refer  it  to  a  com- 
mittee. It  would  not  be  seemly  to  do  so,  but  no  more  so  than  for  a 
President  to  be  likewise  heedless  and  regardless  of  the  views  of  the 
Senate  in  reference  to  the  propriety  or  the  policy  of  making  a  proposed 
treaty  in  a  matter  touching  vitally  the  interests  and  the  institutions  of 
the  country.  It  would  be  not  less  unseemly  for  him  to  reply  to  an  in- 
quiry or  suggestion  of  the  Senate,  "Hands  off." 

In  what  particular  is  the  power  of  the  President  thus  to  put  a  treaty 
ratified  by  the  Senate  in  his  pocket  more  supreme  than  the  power  of  the 


THE  TREATY-MAKING  POWER  97 

Senate  to  bury  in  its  archives  without  action  a  proposed  treaty  sent  to 
it  by  the  President?  I  am  not  detracting  from  the  President  or  his 
power;  I  concede  to  him  his  full  constitutional  power;  but  I  deny  the 
proposition  that  the  President  has  any  superior  power  or  any  superior 
dignity  in  the  making  of  a  treaty  over  and  above  the  Senate. 

Mr.  BEVERIDGE.  Suppose  the  Constitution  had  been  silent  upon 
the  question  of  the  treaty-making  power,  where  would  that  power  have 
lodged  ?  Or  I  will  put  the  question  in  this  way :  Suppose  the  Constitu- 
tion had  said  nothing  about  making  treaties,  would  not  the  complete 
power  of  making  treaties  have  been  in  the  President,  under  section  i  of 
Article  II,  which  lodges  the  executive  power  in  the  President? 

Mr.  BACON.  I  think  not.  I  do  not  understand  the  word  "executive" 
to  mean  anything  of  the  kind. 

Mr.  BEVERIDGE.  Does  not  the  Senator  think  that  in  the  natural 
division  of  the  powers  of  Government  into  legislative,  executive,  and 
judicial  the  treaty-making  power  has  always  been  considered  an  execu- 
tive function,  and,  therefore,  if  the  Constitution  had  been  silent  upon 
the  subject  of  treaties,  it  would  have  been  completely  under  the  Presi- 
dent's control,  under  that  provision  of  the  Constitution  which  confides 
in  the  President  the  executive  power,  and  that  that  section  concerning 
treaties  is  merely  a  limitation  upon  that  universal  power? 

Mr.  BACON.  Oh,  no.  The  Senator  has  gone  to  his  favorite  doctrine 
as  to  extraconstitutional  power,  which  I  will  not  stop  to  discuss  with 
him  to-day.  The  two  continents,  separated  by  the  Atlantic  Ocean,  are 
not  wider  apart  than  the  Senator  and  I  upon  the  subject  of  the  exercise 
of  powers  not  found  in  the  Constitution. 

Mr.  BEVERIDGE.     If  the  Senator  will  permit  me  — 

Mr.  BACON.     I  can  not  discuss  it  to-day.    It  would  take  all  my  time. 

Mr.  BEVERIDGE.  I  will  ask  the  Senator  to  answer  this  question: 
Since  the  Constitution  has  said  nothing  about  — 

Mr.  BACON.  The  Senator  has  asked  that  question,  and  he  does  not 
let  me  answer  before  repeating  it.  The  Senator  will  pardon  me,  but 
he  has  already  asked  it  twice. 

Mr.  BEVERIDGE.  I  will  ask  this  question:  If  the  Constitution  had 
said  nothing  about  the  treaty-making  power,  where  would  the  treaty- 
making  power  have  been  lodged? 

Mr.  BACON.  I  have  received  that  question  from  the  Senator  several 
times.  I  have  said  that  I  did  not  agree  with  him  that  it  would  be  with 
the  Executive. 

Mr.  BEVERIDGE.     Where  would  it  be? 

Mr.  BACON.  I  think,  undoubtedly,  in  the  legislative  branch  of  the 
Government,  for  reasons  which  I  will  give. 

Mr.  BEVERIDGE.     That  is  the  whole  question. 

Mr.  BACON.  Here  is  where  the  sovereignty  of  the  Government  was 
intended  to  be  in  almost  its  totality  —  in  the  legislative  branch  of  the 


98  AMERICAN   FEDERAL   GOVERNMENT 

Government,  and  the  vast  array  of  powers  in  the  first  article  of  the  Con- 
stitution prove  it ;  and,  further  than  that,  the  Constitution  of  the  United 
States  was  intended  to  take  the  place  of  and  to  supersede  the  Articles 
of  Confederation,  under  which  articles  the  power  to  make  treaties  did 
lodge  in  Congress  alone ;  and  it  was  not  to  be  presumed  when  the  Con- 
stitution was  formed,  in  the  absence  of  some  special  and  particular 
designation,  that  it  was  the  intention  to  confer  it  upon  the  Executive. 
The  presumption  would  be  the  other  way. 

I  was  about  to  say,  however,  at  the  time  of  the  interrogatory  pro- 
pounded to  me  by  the  learned  Senator,  in  concluding  what  I  had  to  say 
on  the  history  of  this  matter,  that  President  Washington  in  one  of  his 
messages  casts  a  very  strong  light  upon  the  question  as  to  what  was  the 
estimate  which  this  convention  had  of  the  treaty-making  power  and 
of  the  duty  and  function  which  the  Senate  should  exercise  in  the  treaty- 
making  power.  In  a  famous  message,  which  the  Senator  from  Wis- 
consin cited  and  which  has  been  cited  frequently  and  with  which  we 
are  all  familiar,  where  President  Washington  refused  to  send  certain 
papers  to  the  House  of  Representatives  upon  its  demand,  upon  the 
ground  that  the  House  of  Representatives  had  nothing  to  do  with  treaties, 
and  that  the  Senate  alone  was  the  body  with  which  he  was  to  deal,  the 
Senate  alone  was  the  body  which  had  the  right  to  ask  of  him  informa- 
tion, the  Senate  alone  was  the  body  which  had  the  right  to  share  with 
him  the  secrets  connected  with  foreign  affairs,  stated  this  fact : 

It  is  found  in  his  message.  He  said  not  only  was  the  treaty-making 
power  confided  in  part  to  the  Senate,  but,  speaking  as  he  did  and 
as  he  said,  as  a  member  of  the  convention  and  familiar  with  what  had 
been  done  and  said  there,  he  added  that  there  was  a  very  strong 
effort  made  not  only  to  require  that  two-thirds  of  the  Senate  present 
should  agree  to  a  treaty,  but  that  two-thirds  of  the  entire  Senate,  whether 
present  of  not,  should  be  required  before  a  treaty  could  be  put 
into  effect.  There  could  scarcely  be  stronger  evidence  than  is  found 
in  this  historical  fact  of  the  supreme  estimate  which  was  placed  by  the 
convention  on  the  importance  that  the  Senate  should  be  the  controlling 
influence  in  determining  whether  or  not  any  given  treaties  should  be 
made  with  foreign  countries. 

Mr.  President,  we  have  often  had  cited  the  fact  that  Washington 
during  his  Administration  met  personally  with  the  Senate  to  advise  as 
to  the  making  of  treaties.  He  had  been  present  during  all  the  delibera- 
tions of  that  Convention;  he  was  president  of  the  Convention  which 
made  the  Constitution;  he  had  heard  all  the  deliberations;  he  had 
doubtless  in  personal  interviews  canvassed  this  matter  and  discussed 
it  with  members  of  the  Convention,  and  the  fact  that  he  met  personally 
with  the  Senate,  the  fact  that  he  conferred  personally  with  the  Senate 
as  to  the  propriety  of  making  treaties  before  attempting  to  negotiate  them, 
show  what  he  understood  to  be  the  intention  of  the  Convention  —  that 


THE   TREATY-MAKING   POWER  99 

the  Senate  should  be  not  simply  the  body  to  say  yes  or  no  to  the  Presi- 
dent when  he  proposed  a  treaty,  but  that  the  Senate  should  be  the  ad- 
viser of  the  President  whether  he  should  attempt  to  negotiate  a  treaty. 
What  possible  doubt  can  there  be  under  such  circumstances  as  to  what 
was  his  understanding  of  the  purpose  and  intention  of  those  who  framed 
the  Constitution  ?  And  what  possible  doubt  can  there  be  that  his  under- 
standing was  correct? 

Mr.  President,  it  is  true  that  that  practice  has  been  abandoned,  so 
far  as  concerns  the  President  coming  in  person  to  sit  in  a  chair  on  the 
right  of  the  presiding  officer  to  confer  with  members  of  the  Senate,  as 
our  rules  still  provide  he  shall  do  should  he  come  here  personally,  show- 
ing we  recognize  the  propriety  of  his  coming  and  his  right  to  come. 
But  nevertheless  during  my  official  term  it  has  been  the  practice  of 
Presidents  and  Secretaries  of  State  to  confer  with  Senators  as  to  the 
propriety  of  negotiating  or  attempting  to  negotiate  a  treaty. 

I  know  in  my  own  experience  that  it  was  the  frequent  practice  of 
Secretary  Hay,  not  simply  after  a  proposed  treaty  had  been  negotiated, 
but  before  he  had  ever  conferred  with  the  representatives  of  the  foreign 
power,  to  seek  to  have  conferences  with  Senators  to  know  what  they 
thought  of  such  and  such  a  proposition ;  and,  if  the  subject-matter  was 
a  proper  matter  for  negotiation,  what  Senators  thought  as  to  certain 
provisions;  and  he  advised  with  them  as  to  what  provisions  should  be 
incorporated. 

I  recollect  two  treaties  in  particular.  One  is  the  general  arbitration 
treaty.  I  do  not  know  whether  he  conferred  with  all  Senators,  but  I 
think  he  did.  I  think  he  conferred  with  every  Senator  in  this  Chamber, 
either  in  writing  or  in  person,  as  to  the  general  arbitration  treaty.  He 
certainly  conferred  with  me. 

Mr.  SPOONER.     Who  did? 

Mr.  BACON.  Mr.  Hay.  He  certainly  conferred  with  me,  not  only 
once  but  several  times,  and  I  presume  he  did  the  same  with  other  Sena- 
tors, not  simply  as  to  the  question  whether  a  treaty  should  be  negotiated, 
but  as  to  what  provisions  should  be  incorporated  in  it.  I  am  sorry  to 
say  that  while  agreeing  with  the  purpose  in  view  I  could  not  agree  with 
some  of  the  provisions  incorporated  in  that  particular  treaty,  and  he 
went  on  and  the  treaty  was  formulated  with  which  in  all  particulars  I 
did  not  agree.  But  I  am  simply  speaking  of  the  fact  that  he  conferred 
with  Senators  before  he  formulated  a  treaty,  not  simply  before  the 
President  sent  it  here,  not  simply  before  it  was  negotiated  with  Sir  Morti- 
mer Durand  and  the  ambassadors  of  other  countries,  but  before  it  had 
been  formulated. 

Then,  as  to  another,  I  recollect  distinctly  the  Alaskan  treaty.  Time 
after  time  and  time  after  time  Mr.  Hay,  then  Secretary  of  State,  con- 
ferred with  Senators,  and,  I  presume,  with  all  the  Senators,  as  to  the 
propriety  of  endeavoring  to  make  that  treaty  and  as  to  the  various  pro- 


ioo  AMERICAN   FEDERAL   GOVERNMENT 

visions  which  should  be  incorporated  in  it,  recognizing  the  delicacy  of 
the  situation,  and  the  provisions  of  that  treaty  were  well  understood  by 
members  of  the  Senate  and  approved  by  members  of  the  Senate  before 
it  was  ever  formulated  and  submitted  to  Sir  Michael  Herbert. 

But  what  was  Mr.  Hay  doing  in  all  that  time?  Was  he  carrying  out 
the  contemplation  of  the  Constitution?  Was  he  engaged  in  the  per- 
formance of  a  high  duty  ?  Was  he  availing  himself  of  a  valuable  instru- 
mentality, or  was  he  simply  engaged  in  the  interchange  of  politeness  ? 

Mr.  SPOONER.  Will  the  Senator  permit  me  to  make  an  inquiry  of 
him? 

Mr.  BACON.     With  pleasure. 

Mr.  SPOONER.  Does  the  Senator  conceive  of  no  distinction  between 
consultation  by  the  Secretary  of  State,  if  he  so  wills  it,  with  Senators, 
and  the  participation  of  the  Senate,  as  a  body,  the  thing  of  which  we  are 
speaking,  as  a  part  of  the  negotiating  power? 

Mr.  BACON.  The  Senator  leads  me  to  remark  what  I  said  to  a  Sena- 
tor yesteiday,  that  the  Senator's  mind  necessarily  works  more  rapidly 
than  another  man's  tongue  can.  The  Senator  is  simply  anticipating 
what  I  was  coming  to  on  that  point. 

Mr.  SPOONER.     That  is  a  high  tribute  to  my  intelligence. 

Mr.  BACON.  On  the  contrary,  I  consider  it  a  tribute  to  me,  that  the 
logical  sequence  of  the  question  is  directly  where  the  Senator  put  it, 
and  that  I  had  been  so  fortunate  as  to  be  going  straight  in  that  direction. 
So  I  can  take  it  as  a  compliment  to  myself. 

I  will,  however,  now  take  the  subject  which  I  was  about  to  discuss 
otherwise,  just  in  the  form  in  which  the  Senator  puts  it,  because  it  is 
practically  the  same  as  that  which  I  had  intended. 

The  Senator  asked  me  this  question:  Do  I  draw  no  distinction  be- 
tween the  voluntary  action  of  the  Secretary  of  State  endeavoring  to  get 
the  opinion  of  the  Senator  or  of  myself  and  the  act  of  the  Senate  seek- 
ing —  I  do  not  know  whether  I  am  correctly  quoting  him ;  if  not,  the 
Senator  can  correct  me  —  to  proffer  to  the  State  Department  or  to  the 
President  advice  unasked?  Is  that  the  question? 

Mr.  SPOONER.     Well,  yes;  substantially  — 

Mr.  BACON.     That  is  the  way  I  understood  it. 

Mr.  SPOONER.  Although  I  want  the  Senator  to  understand  that  I 
have  not  questioned  the  right  of  the  Senate  — 

Mr.  BACON.  I  know;  but  the  Senator  asked  me  a  question.  Let  us 
discuss  that  afterwards. 

Mr.  SPOONER.     To  offer  its  advice,  either  in  public  or  in  private. 

Mr.  BACON.     I  do  not  understand  the  Senator's  question. 

Mr.  SPOONER.  The  question  I  put  to  the  Senator  was  this:  If  he 
did  not  recognize  a  distinction,  from  the  standpoint  of  the  matter  of  con- 
stitutional power,  between  the  President  —  leave  out  the  Secretary  of 
State  —  asking  individual  Senators  their  judgment  as  to  a  proposed 


THE  TREATY-MAKING  POWER  101 

treaty,  and  his  inviting  the  Senate  as  a  body,  or  individual  Senators 
volunteering  to  the  President  their  advice  as  to  a  proposed;  negotiation, 
and  the  action  of  the  body  as  a  body  volunteering  their  advice;  especially 
if  they  asserted  the  right  to  do  so  ?  •  •  >  - 

Mr.  BACON.  Well,  I  will  answer  the  Senator  definite!)1*.  -  f  do.m/t 
recognize  the  distinction,  and  I  will  tell  him  the  reason  why. 

When  the  President  or  the  Secretary  of  State  either  —  say,  the  Presi- 
dent, to  simplify  it  —  asks  a  Senator  what  he  thinks  about  the  proposi- 
tion to  negotiate  such  and  such  a  treaty,  and  what  he  thinks  as  to  the 
specific  terms  to  be  incorporated  in  that  treaty,  he  does  not  ask  that 
Senator  that  question  as  he  asks  Mr.  Jones  or  Mr.  Smith,  whom  he 
happens  to  meet  upon  the  Avenue,  in  order  that  he  may  have  the  ad- 
vantage of  advice  and  assistance  from  a  man  in  whose  intellectual 
processes  and  capacity  he  has  confidence,  but  he  asks  him  because  of 
the  fact  that  the  Constitution  of  the  United  States  makes  the  Senator 
his  adviser,  his  constitutional,  official  adviser  and  counselor  in  the  mak- 
ing of  treaties. 

Now,  Mr.  President,  if  that  is  true,  is  that  advice  something  which 
the  President  has  exclusively  within  his  control  ?  Is  it  something  which 
he  can  ask,  and  which  he  alone  can  get  the  benefit  of  in  case  he  does 
ask,  or  is  it  a  great  constitutional  provision  which  makes  it  a  reciprocal 
right  for  a  common  benefit  ? 

Can  it  be  said  that  while  it  is  proper  for  Senators  or  the  Senate  to 
respond  when  advice  is  asked,  it  is  improper,  under  the  constitutional  pro- 
vision, to  volunteer  such  advice?  It  is  undoubtedly  true  that  the  Presi- 
dent alone  determines  whether  he  will  approve  and  act  upon  the  advice 
of  the  Senate,  just  as  the  Senate  determines  whether  it  will  or  will  not 
approve  a  proposed  treaty.  But  can  it  be  contended  that  the  Senate, 
although  the  constitutional  adviser  of  the  President,  can  only  give  ad- 
vice when  asked  for  it,  and  that  it  is  an  intrusion  to  proffer  it  when  thus 
not  asked  for  it?  Where  is  the  warrant  in  the  Constitution  for  such 
contention  ?  That  it  has  not  been  so  recognized  by  the  President  or  by 
the  Senate  is  shown  by  the  fact  that  it  has  frequently  happened  that 
resolutions  have  frequently  been  passed  by  the  Senate  informing  the 
President  that  the  Senate  would  approve  a  treaty  for  a  given  purpose. 
Can  it  be  said  that  while  proper  to  thus  notify  the  President,  in  advance, 
of  what  the  Senate  would  approve  in  a  treaty,  it  is  improper  to  notify 
him  also,  in  advance,  of  what  it  deprecates,  if  it  is  proposed  to  embody 
it  in  a  treaty  ?  Can  it  be  proper  for  the  Senate  to  offer  advice  or  counsel 
to  the  President  as  to  the  policy  or  impolicy  of  a  proposed  treaty,  and 
at  the  same  time  improper  to  ask  for  the  information  upon  which  to  base 
such  advice  or  counsel  ?  Where  is  the  logic  or  such  a  contention  ? 

Again,  can  it  be  proper  to  advise  the  President  as  to  the  desirability 
and  policy  of  negotiating  a  treaty  where  he  has  not  taken  any  action 
relative  thereto  and  where  the  suggestion  originates  with  the  Senate, 


102  AMERICAN   FEDERAL   GOVERNMENT 

and  on  the  other  hand  be  improper  to  advise  him  of  the  undesirability 
and  impolicy,  in  the  opinion  of  the  Senate,  in  a  case  where  it  is  reliably 
learned  through  other  sources  that  he  has  begun  to  take  or  has  taken 
•action  relative  thereto?  Where  does  the  Senate  get  power  to  amend  a 
treaty  if  its  authority  is  limited  to  consenting  to  what  the  President  has 
done?  When  the  Senate  has  amended  a  proposed  treaty  and  the  Presi- 
dent thereafter  submits  the  amendment  to  the  foreign  power  for  its  con- 
sideration, has  not  the  Senate  taken  part  in  the  negotiation  of  that 
treaty? 

If  the  contention  is  correct  that  the  jurisdiction  and  power  of  the 
Senate  do  not  begin  until  the  proposed  treaty  is  sent  to  the  Senate,  then 
none  of  these  things  are  proper,  and  to  make  an  inquiry  of  the  President 
relative  to  a  proposed  treaty  is  an  intrusion  upon  his  exclusive  jurisdic- 
tion. If  the  contention  is  correct,  it  matters  not  what  may  be  the  well- 
understood  purpose  of  an  Executive  in  negotiating  a  treaty  or  in  sending 
delegates  to  a  conference,  the  Senate  is  dumb  until  it  receives  a  pro- 
posed treaty.  It  may  be,  as  forcefully  suggested  by  the  Senator  from 
Maine  [Mr.  Hale]  a  few  days  ago,  that  the  proceeding  tends  inevitably 
to  war,  and  yet  it  will  be  an  intrusion  for  the  Senate  to  even  make  an 
inquiry  of  the  Executive  concerning  the  same. 

Again,  the  Executive  may,  without  ever  sending  any  proposed  treaty 
to  the  Senate,  continue  to  send  delegates  to  European  international 
political  conferences,  and  in  time  practically  destroy  our  recognition  of 
the  long-established  doctrine  of  non- entanglement  by  us  in  such  dis- 
putes. After  having  taken  an  active  part  by  our  delegates  in  the  Alge- 
ciras  conference,  no  proposed  treaty  may  be  submitted  to  the  Senate. 
Nor  is  that  all  in  sight.  We  are  told  in  the  press  despatches  that  Euro- 
pean questions  concerning  the  Balkan  States  are  again  becoming  acute; 
that  there  is  great  tension,  and  that  another  European  war  cloud  is 
gathering  in  the  East.  Doubtless  there  will  be  another  conference  to 
deal  with  that  situation  and  determine  the  relative  rights  and  powers 
of  the  war  lords  of  Europe.  To  that,  according  to  the  new  doctrine,  it 
will  again  be  in  order  to  send  delegates  from  the  United  States.  And 
after  having  taken  an  active  part  in  the  deliberations  of  the  conference, 
again  no  proposed  treaty  may  be  sent  to  the  Senate.  And  although  in 
attending  each  of  these  conferences  by  our  delegates  tremendous  strides 
will  have  been  taken  in  establishing  precedents  and  in  destroying  the 
doctrine  of  an  hundred  years  against  entanglements  in  European  inter- 
national disputes,  still  in  the  absence  of  any  proposed  treaty  submitted, 
the  Senate  must  be  dumb,  and  it  is  an  intrusion  to  even  make  an  inquiry 
of  the  President  in  the  interest  of  the  preservation  of  the  cherished  policies 
of  our  country.  Mr.  President,  I  can  not  subscribe  to  such  a  doctrine. 

It  seems  to  be  somewhat  remarkable  that  there  should  be  such  ex- 
treme sensitiveness  about  the  Senate  assuming  to  advise  as  to  the  "  nego- 
tiation" of  a  treaty,  when  it  seems  to  be  entirely  proper  for  " advice" 


THE  TREATY-MAKING   POWER  103 

to  be  given  by  the  President  to  Senators  as  to  how  they  should  vote  on 
the  question  of  the  ratification  of  a  treaty. 

Mr.  SPOONER.  If  the  Senator  will  permit  me,  does  he  think  if  the 
President  asked  a  Senator's  advice  as  to  whether  a  treaty  should  be  nego- 
tiated or  not,  the  Senator  is  under  any  constitutional  duty  to  give  it,  or 
would  be  committing  a  breach  of  Senatorial  duty  if  he  declined  to  advise 
in  advance? 

Mr.  BACON.     If  the  Senator  declined? 

Mr.  SPOONER.  If  the  Senator  declined.  The  Senator  speaks  of 
reciprocal  rights.  He  says  the  President  has  the  right  to  ask  a  Senator 
for  his  advice  as  to  whether  any  foreign  policy  shall  or  shall  not  be  pur- 
sued in  the  matter  of  negotiating  a  treaty.  To  test  that,  does  the  Senator 
think  if  the  President  has  a  right  to  ask  it  — 

Mr.  BACON.     Ask  the  question  now. 

Mr.  SPOONER.  The  Senator,  I  should  think,  ought  to  have  a  recip- 
rocal duty  to  answer. 

Mr.  BACON.     I  think  so,  undoubtedly. 

Mr.  SPOONER.  Does  the  Senator  think  the  Senator  is  obliged  to 
answer  ? 

Mr.  BACON.  Undoubtedly  he  may  not  be  able  to  give  it.  He  may 
say,  "I  have  not  the  information;  I  have  not  made  up  my  mind."  But 
for  the  Senator  to  say,  "I  have  an  opinion,  but  I  will  not  give  it  to  you," 
would,  in  my  opinion,  be  a  contravention  of  his  constitutional  duty. 
There  is  but  one  possible  ground  upon  which  a  Senator  could  base  any 
such  refusal,  and  that  is,  if  he  were  to  say  (and  I  do  not  think  he  would 
be  correct  in  that),  "I  recognize  that  this  is  an  act  which  should  be  per- 
formed by  the  Senate  as  an  organized  body  and  not  by  myself  in  my 
official  individual  capacity,  and  therefore  I  decline  to  give  any  indi- 
vidual opinion."  That  is  the  only  ground  upon  which  he  could  put 
it,  and  I  do  not  think  that  would  be  a  correct  ground. 

Mr.  SPOONER.  Would  it  not  be  an  eminently  proper  and  wise  ground 
for  the  Senator  to  take  that  the  people  were  entitled  to  his  independent 
judgment  on  the  question  as  to  whether  a  treaty  should  be  ratified  or  not 
by  the  Senate  after  it  had  been  negotiated  and  submitted  to  the  Senate  ? 

Mr.  BACON.     I  ask  the  Senator  to  please  repeat  his  question. 

Mr.  SPOONER.  Would  it  not  be  entirely  proper  and  wise  and  almost 
a  duty  for  a  Senator  to  say,  "I  decline  to  commit  myself  as  a  Senator  in 
advance  to  a  proposed  treaty.  I  prefer  to  wait  until  the  power  of  nego- 
tiation, which  the  Constitution  lodges  in  the  President,  shall  have  been 
put  forth  and  the  Senate  is  in  possession  of  the  instrument,  so  that  I 
can  read  it,  study  it,  have  the  advantage  of  debate  upon  it  among  my 
associates,  and  then  give  to  it  the  independent  judgment  to  which  the 
people  are  entitled  from  every  Senator?" 

I  doubt  myself,  and  I  have  had  some  experience,  the  wisdom  of  a 
Senator  committing  himself  blindly  to  a  foreign  policy,  to  end  in  the 


104  AMERICAN   FEDERAL   GOVERNMENT 

negotiation  of  a  treaty,  to  find  himself  later,  when  the  negotiation  is 
ended  and  the  document  is  laid  before  the  Senate,  halfway  (which  with 
an  honorable  man  means  a  great  way)  committed,  and  committed  too 
early  and  too  hastily. 

Mr.  BACON.  The  Senator  asks  me  the  abstract  question  whether  or 
not  I  consider  it  to  be  the  constitutional  duty  of  a  Senator  to  give  ad- 
vice to  the  President  as  to  the  propriety  of  the  making  of  a  treaty  before 
it  has  been  sent  to  the  Senate.  I  answer  in  the  affirmative.  The  Senator 
goes  on  to  say  that  no  Senator  ought  to  give  blindly  his  advice.  I  quite 
agree  with  him,  as  I  have  intimated  before.  A  Senator  may  decline  to 
give  the  advice  upon  the  ground  that  he  has  not  had  the  proper  time  for 
making  up  his  mind  satisfactorily  to  himself,  or  for  other  good  reason. 

But,  Mr.  President,  advice  means  also  counsel.  Advice  means  more 
than  giving  simply  the  statement  of  what  the  Senator  thinks  ought  to 
be  done.  It  means  counsel;  and,  therefore,  while  the  Senator  might 
say  to  the  President,  "I  am  not  in  a  position  to  make  up  my  mind  defi- 
nitely as  to  what  ought  to  be  done,"  the  President  would  then  proceed 
to  counsel  with  him  and  suggest  such  and  such  a  condition  of  affairs 
and  such  and  such  remedies  which  might  be  applied,  with  a  view  to 
arriving  at  a  conclusion  as  to  what  would  be  the  proper  thing  to  do. 
Then,  I  say  if  the  Senator  would  turn  his  back  on  the  President  and 
say,  "I  decline  to  counsel  with  you  or  to  hear  your  suggestion  or  to  con- 
fer with  you  as  to  what  is  the  proper  thing  to  be  done,"  while,  of  course, 
it  would  be  a  matter  of  conscience  for  each  Senator,  from  my  point  of 
view  the  Senator  would  be  derelict  in  so  doing. 

Now,  Mr.  President,  I  am  not  certain  whether  I  had  fully 
answered  the  inquiry  of  the  Senator  from  Wisconsin  [Mr.  Spooner] 
or  not.  He  is  present,  and  if  I  have  not,  I  hope  he  will  call  my  attention 
to  it.  My  attention  has  been  so  diverted  I  am  really  not  certain  whether 
I  completely  replied  to  his  interrogatory.  But  before  leaving  it  I  wish 
to  say  in  a  general  way  that  according  to  my  view  of  the  treaty-making 
power,  of  the  duty  of  the  President,  and  of  the  duty  of  the  Senate,  it  is 
a  reciprocal  and  a  common  duty,  one  in  which  each  has  the  advantage 
of  the  services  of  the  other,  one  in  which  there  is,  perhaps,  no  compul- 
sion, one  in  which  each  can  defeat  the  work  of  the  other,  one  in  which 
the  cooperation  and  combination  of  the  two  from  the  inception  to  the 
end  is  necessary  in  order  to  fully  comply  with  the  intention  and  design 
of  the  Constitution  makers  in  this  regard. 

The  Senator  from  Wisconsin,  in  order  to  accentuate  and  emphasize 
the  fact  that  the  President  of  the  United  States  sat  away  up  on  a  pedestal 
above  us  in  all  matters  which  related  to  treaty  making,  except  the  simple 
matter,  as  he  himself  expressed  it,  of  " ratification,"  because  he  trans- 
lates the  words  "  ad  vice  and  consent"  as  meaning  in  the  common  par- 
lance "ratification,"  the  Senator,  I  say,  in  order  to  emphasize  that  fact, 


THE  TREATY-MAKING   POWER  105 

goes  further,  and  in  the  clauses  of  his  speech  which  I  have  already  read 
he  puts  up  as  the  supreme  power,  the  supreme  controller  in  all  foreign 
affairs,  the  President  of  the  United  States.  The  President,  according 
to  the  Senator  from  Wisconsin,  in  all  of  our  foreign  affairs  is  supreme. 
And,  Mr.  President,  he  lays  down  the  proposition  with  much  emphasis, 
and  says  that  that  is  —  I  am  not  quoting  the  words  now,  but  the  sub- 
stance —  practically  conceded  by  every  man  who  has  ever  studied  the 
Constitution.  He  asserts  this  so  broadly  and  so  emphatically  that  for 
one  to  assert  the  contrary  is  to  recognize  in  advance  that  in  so  doing 
he,  according  to  the  Senator,  puts  himself  out  of  the  pale  and  class  of 
reputable  lawyers.  Yet,  Mr.  President,  at  the  risk  of  being  thus  de- 
barred, I  want  to  analyze  a  little  bit  the  powers  conferred  by  the  Con- 
stitution with  reference  to  foreign  affairs,  and  see  whether  they  rest 
with  the  President  alone  or  whether,  in  the  main,  they  rest  with  Con- 
gress, and  with  the  Senate  in  conjunction  with  the  President. 

It  is  true,  Mr.  President,  that  in  the  countries  antedating  our  Gov- 
ernment the  executive,  who  was  almost  universally  a  king  —  I  believe 
little  Switzerland  was  the  only  exception  at  that  time,  and  I  am  not 
sure  that  it  was  at  that  time,  because  it  has  had  varying  fortunes,  and 
I  have  forgotten  whether  at  that  particular  time  it  was  a  republic  or 
not  —  but  almost  universally  the  executive  of  a  nation  was  a  king,  and 
he  did  have,  among  other  kingly  powers,  all  control  over  foreign  affairs. 
But,  Mr.  President,  when  our  Constitution  came  to  be  framed  there  was 
particularly  and  definitely  withheld  from  the  executive  every  important 
foreign  function,  according  to  my  view  of  it.  I  know  in  one  particular 
the  Senator  differs  from  me,  but  in  all  others  he  will  agree.  It  took 
away  from  the  Executive,  with  the  exception  of  the  treaty-making  power, 
all  power  over  foreign  affairs.  It  made  him,  in  the  language  the  Senator 
used  the  other  day,  the  organ  of  intercommunication  with  foreign  nations. 
It  made  him  the  spokesman  for  the  Government.  It  made  him  the  per- 
son to  discuss  with  foreign  governments,  to  make  demands,  if  you  please, 
on  foreign  governments,  to  guard  so  far  as  watchfulness  goes,  the  in- 
terest of  our  country  and  of  our  citizens  in  foreign  lands.  But  when  it 
came  to  action,  when  it  came  to  the  power  to  do  anything,  that  power 
was  expressly  conferred  upon  Congress,  or  upon  the  President  in  con- 
junction with  the  Senate. 

What  is  the  most  important  of  all  foreign  relations  ?  Why,  the  most 
important  of  all  foreign  relations  is  the  relation  of  peace  and  war.  Can 
the  President  declare  war?  Can  the  President  prevent  a  declaration  of 
war?  The  President  not  only  can  not  declare  war,  and  it  is  not  only 
conferred  in  terms  upon  Congress,  but  even  if  the  President  should  be 
opposed  to  a  proposed  war,  two-thirds  of  each  Branch  can  declare  war. 
It  would  not  require  his  approval.  There  is  the  most  important  of  all 
foreign  relations.  It  does  not  belong  to  the  President.  Nor  can  the 


io6  AMERICAN   FEDERAL   GOVERNMENT 

President  alone  make  peace.    He  can  only  do  so  with  the  cooperation 
of  the  Senate. 

The  question  of  commerce  is  certainly  an  important  matter  of  rela- 
tion between  two  countries,  and  yet  the  President  has  no  power  over 
commerce  with  foreign  nations.  The  power  to  regulate  commerce  is 
not  simply  withheld  from  the  President,  but  it  is  expressly  conferred 
upon  Congress;  and  the  subsidiary  question  as  to  what  shall  be  the 
terms  upon  which  the  merchandise  of  a  foreign  country  shall  come  to 
this  country  is  a  question  largely  important  in  foreign  relations,  and 
is  one  over  which  the  President  of  the  United  States  has  no  power.  It 
belongs,  under  the  Constitution,  to  the  lawmaking  power;  and  that 
lawmaking  power  can  be  exercised  by  Congress  not  only  without  the 
consent  of  the  President,  but  over  his  objection. 

The  terms  upon  which  foreign  ships  shall  be  allowed  to  enter  our 
ports  or  do  business  with  us  is  an  important  one  in  our  foreign  relations, 
but  the  power  to  fix  and  determine  them  is  altogether  with  Congress. 

The  question  as  to  whether  or  not  citizens  of  another  country  shall 
be  allowed  to  come  to  this  country,  and  if  so,  upon  what  terms,  is  an 
important  question  of  foreign  relations;  and  yet  the  President  has  no 
power  to  control  it.  It  is  a  question  exclusively  within  the  lawmaking 
power.  The  question  whether  this  country  will  permit  any  of  a  certain 
nationality  to  come  at  all  to  this  country  is  a  question  not  with  the  Presi- 
dent, but  a  question  with  the  lawmaking  power. 

Nay,  sir,  the  question  whether  this  Government  will  hold  any  rela- 
tions with  a  foreign  country  is  a  question  with  Congress.  It  is  entirely 
within  the  competency  of  Congress  to  pass  a  law  that  no  citizen  of  a 
given  country  shall  come  to  this  country,  that  no  goods  shall  be  received 
from  it,  that  no  merchandise  shall  go  from  this  country  to  it,  that  no 
letters  shall  come  from  it,  that  there  shall  be  no  intercommunication  of 
any  kind  whatever.  Who  doubts  the  power  of  Congress  to  do  so  ? 

In  other  words,  it  is  within  the  power  of  Congress  to  absolutely  sunder 
the  relations  between  this  country  and  any  given  foreign  country.  When 
that  is  said  the  whole  thing  is  said ;  when  that  is  said  the  whole  argu- 
ment is  exhausted  as  to  where  rests  the  supreme  power  in  foreign  affairs, 
because  the  whole  must  include  every  part.  If  it  is  within  the  power 
of  Congress  to  absolutely  sunder  all  relations  of  every  kind,  commer- 
cial, social,  political,  diplomatic,  and  of  every  other  nature,  it  is  certainly 
within  the  power  of  Congress  to  regulate  and  control  every  question  sub- 
sidiary to  that  and  included  within  it.  Congress  and  not  the  President 
is  supreme  under  the  Constitution  in  the  control  of  our  foreign  affairs. 

Now,  Mr.  President,  there  is  but  one  question  about  which  there  is 
even  any  controversy  as  to  the  power  of  the  President  over  foreign  rela- 
tions, and  that  is  the  one  about  which  the  Senator  and  myself  have 
differed  for  years,  and  about  which  I  presume  we  will  continue  to  differ. 
It  is  as  to  the  right  of  the  President  of  the  United  States  to  finally  recog- 


THE  TREATY-MAKING   POWER  107 

nize  or  finally  refuse  to  recognize  the  independence  of  a  revolutionary 
or  rebellious  country. 

Of  course,  time  does  not  permit  me  now  to  discuss  that  question  at 
length.  I  have  heretofore  discussed  it  in  the  Senate,  and  while  I  am 
not  very  fond  of  labor,  if  the  time  shall  ever  come  when  that  question 
is  per  se  discussed,  I  shall  endeavor  to  take  my  part  in  it,  for  it  is  a  most 
interesting  and  important  question.  It  is  a  matter  to  me  of  the  strongest 
and  most  absolute  conviction  as  a  legal  proposition.  Of  course,  I  do 
not  question  at  all  that  where  it  is  a  question  as  to  what  is  the  de  facto 
government  in  a  fully  independent  country,  that  is  a  question  which  is 
practically  determined  by  the  President  of  the  United  States  in  the 
recognition  of  diplomatic  relations,  but  where  a  country  is  in  a  condition 
of  rebellion,  which  has  asserted  its  independence  and  is  endeavoring  to 
establish  its  independence,  and  where  the  parent  country  is  denying  its 
independence  and  is  by  the  force  of  arms  endeavoring  to  put  down  the 
rebellion  or  the  insurrection,  to  say  that  the  President  of  the  United 
States  solely  and  alone  can  determine  finally  that  question  for  this  coun- 
try, and  that  Congress  has  no  power  over  it,  is  a  matter  to  me  absolutely 
without  the  domain  of  logic.  I  say  in  every  act  of  that  kind,  the  supreme 
power,  the  final  power  of  decision,  is  with  Congress,  the  lawmaking 
power,  and  whatever  is  done  by  the  executive  department  in  that  regard 
is  necessarily  subject  to  the  revision  and  control  and  reversal  of  the 
lawmaking  power. 

Why,  Mr.  President,  we  have  seen  in  the  papers  that  a  province  of 
Russia  some  month  or  two  ago  rebelled  and  set  up  an  independent  gov- 
ernment, or,  rather,  professed  to  do  so.  We  have  heard  nothing  of  it 
lately.  I  presume  it  has  been  suppressed.  Suppose  in  a  case  of  that 
kind,  not  this  President,  but  any  President,  had  taken  upon  himself  to 
say,  "I  recognize  that  province  as  an  independent  government."  To 
claim  that  that  would  have  been  a  final,  conclusive  act  on  the  part  of 
the  Government  of  the  United  States,  and  that  Congress  would  in  such 
case  have  no  right  or  power  to  reverse  the  decision  and  save  the  country 
from  war  with  Russia,  is  something  to  me,  I  say,  beyond  the  possibility 
of  comprehension.  But  I  will  not  go  into  that  argument  now,  because 
I  know  I  would  necessarily  enter  upon  a  field  which  in  itself  would  be 
larger  really,  or  as  large,  as  the  main  one  upon  which  I  am  now  engaged 
in  this  discussion. 

Mr.  SPOONER.     Will  the  Senator  allow  me  to  ask  him  a  question? 

The  PRESIDING  OFFICER  (Mr.  McCumber  in  the  chair).  Does  the 
Senator  from  Georgia  yield  to  the  Senator  from  Wisconsin  ? 

Mr.  BACON.     Certainly. 

Mr.  SPOONER.  The  Constitution  gives  to  the  President  the  power 
to  receive  ambassadors  and  ministers.  Does  the  Senator  think  that  the 
action  of  the  President  in  the  exercise  of  that  function  is  subject  to  the 
control  of  Congress? 


io8  AMERICAN  FEDERAL   GOVERNMENT 

Mr.  BACON.  I  have  not  the  slightest  doubt  in  the  world  that  Con- 
gress, in  such  a  case  as  I  have  just  mentioned,  could  pass  a  law  and 
send  that  ambassador  back  to  the  country  from  which  he  came. 

Mr.  SPOONER.  What  sort  of  a  law  would  that  be  ?  I  am  not  talking 
now  about  declaring  war  or  severing  diplomatic  relations. 

Mr.  BACON.     It  can  be  done  that  way. 

Mr.  SPOONER.  What  sort  of  an  act  would  be  that  instruction  to  the 
President  to  send  the  ambassador  back? 

Mr.  BACON.  I  do  not  suppose  that  the  President  would  need  any 
instruction  more  than  the  law. 

Mr.  SPOONER.     But  what  law? 

Mr.  BACON.     The  act  — 

Mr.  SPOONER.     What  form  of  law? 

Mr.  BACON.     The  act  which  should  be  passed  by  Congress. 

Mr.  SPOONER.  What  would  be  the  form  of  such  a  law  in  a  general 
way? 

Mr.  BACON.  Simply  to  say  we  would  not  have  an  ambassador  at 
all  from  that  country,  because  we  did  not  recognize  it  as  an  independent 
country.  That  is  the  act  of  Congress  I  have  in  mind  when  I  say  it 
would  control  the  President  and  reverse  his  decision  recognizing  that 
province  as  an  independent  nation. 

Now,  as  to  whether  or  not  Congress  should  say  to  the  President  of 
the  United  States,  You  must  not  receive  John  Jones,  or  William  Smith, 
or  any  other  particular  man  from  any  particular  country.  Of  course 
nobody  contends  Congress  could  do  that.  That  is  not  the  question  at 
all.  It  is  the  question  whether  in  the  case  where  a  country,  or  part  of 
a  country  in  rebellion  to  the  mother  country  sets  up  a  professed  or  pre- 
tended independent  government  and  sends  an  ambassador  to  this 
country,  the  reception  by  the  President  of  the  United  States  of  that 
ambassador  is  a  conclusive  and  final  determination  on  the  part  of  the 
Government  of  the  United  States  that  henceforth  there  shall  be  no 
question  but  what  that  is  an  independent  country  so  far  as  the  recog- 
nition of  this  country  is  concerned.  My  reply  to  the  Senator  is  that 
if  such  an  ambassador  were  sent,  Congress  would  have  it  within  its 
power  to  pass  a  law  that  it  would  not  recognize  that  country  as  an  in- 
dependent country,  and  that  it  would  continue  as  in  the  past  to  recog- 
nize it  as  a  part  of  Russia,  for  instance,  and  when  that  law  was  passed 
it  would  be  the  duty  of  the  President  to  give  that  ambassador  his  pass- 
ports and  no  longer  recognize  him  or  any  other  as  an  ambassador  from 
that  pretended  government. 

******** 

Mr.  BACON.  Compared  to  this  great  array  of  sovereign  powers 
granted  to  Congress,  those  conferred  upon  the  President  present  a  most 
striking  contrast.  He  is  clothed  with  the  great  power  and  responsibility 
of  the  execution  of  the  laws,  but  beyond  this  the  only  prerogative  of  sov- 


THE  TREATY-MAKING   POWER  109 

ereignty  with  which  he  is  exclusively  invested  is  the  pardoning  power,  and 
even  that  is  denied  to  him  in  cases  of  impeachment  by  the  House  and 
conviction  by  the  Senate. 

We  have  passed  by  more  than  two  hundred  years  the  period  in  the 
history  of  our  race  when  one  man  could  assume  and  exercise  the  power 
to  determine,  independently  of  the  legislative  department,  what  should 
be,  even  in  part,  the  laws  of  the  Government.  The  framers  of  the  Con- 
stitution stood  nearer  by  a  hundred  years  than  we  do  to  the  time  when  a 
King  sought  to  rule  without  Parliament  and  in  defiance  of  Parliament; 
when  he  sought  to  take  to  himself  all  the  powers  of  government  and  set  at 
naught  the  laws  of  the  country's  constitutional  legislators.  The  great 
and  wise  men  who  framed  our  fundamental  law  stood  in  the  century  next 
removed  from  that  which  had  witnessed  the  culmination  of  that  great 
struggle  from  the  events  of  which  they  gathered  the  lesson  that  the  ma- 
terial interests  and  the  liberties  of  a  people  are  safest  when  the  great 
powers  of  government  are  lodged  not  in  the  control  of  one  man,  of  what- 
ever title  or  office,  but  in  the  hands  of  their  elected  representatives. 

They  had  learned  from  it  that  one  man  invested  with  such  powers 
was  quick  to  consider  his  own  fortunes  and  the  fortunes  of  his  favorites  of 
more  consequence  than  the  prosperity  of  the  whole  people.  They  were 
taught  by  that  history  to  fear  that  one  so  girt  with  power  would  grow 
great  in  his  own  conceit;  that  he  would  attempt  to  draw  to  himself  all 
the  authority  of  Government,  and  that  not  only  one  born  to  the  kingly 
office,  but  also  one  who  held  but  temporarily  the  elective  office  of  Presi- 
dent, might  come  to  think  himself  compassed  with  — 

The  divinity  that  doth  hedge  a  king. 

While  they  hoped  that  only  good  and  wise  men  would  be  chosen  to  that 
high  office,  they  forgot  not  the  frailties  of  the  weak  nor  the  grasping  ambi- 
tions of  the  strong.  They  guarded  against  the  worst.  They  designed 
that  in  the  hands  of  a  weak  Executive  the  Government  should  not  fail, 
and  that  in  the  hands  of  one  strong,  self-willed,  and  ambitious  there 
should  not  be  imperiled  the  free  institutions  which  they  sought  to  estab- 
lish. Therefore,  while  they  created  a  great  and  noble  office,  one  within 
its  legitimate  sphere  the  greatest  and  noblest  of  all  the  earth,  they  de- 
signed that  its  greatness  and  nobility  should  not  consist  in  the  arbitrary 
powers  of  the  kingly  office. 

The  greatness  of  the  Presidential  office  does  not  consist  in  his  will  being 
the  law  to  80,000,000  people,  but  in  the  fact  that  the  President  in  himself 
personifies  the  will  of  a  great  and  free  people  as  that  will  is  expressed  by 
them  through  another  department  of  the  Government.  No  man  can 
shut  his  eyes  to  the  fact  that  to  that  end,  while  they  invested  the 
President  with  all  the  great  dignity  and  power  of  the  Executive  office, 
they  carefully  withheld  from  him  the  grant  of  the  powers  of  sover- 


no  AMERICAN   FEDERAL   GOVERNMENT 

eignty.  Every  power  given  to  him  was  most  carefully  restricted  and 
guarded. 

While  they  gave  him  the  power  of  the  veto,  they  gave  the  Congress  the 
power  to  override  his  veto  by  a  two-thirds  vote  of  each  House. 

While  they  gave  him  the  power  to  make  treaties  with  foreign  nations, 
by  and  with  the  advice  of  the  Senate,  they  refused  to  him  the  power  to 
make  such  treaties  without  their  sanction. 

They  gave  him  power  to  pardon  those  convicted  of  crime,  but  denied 
to  him  the  power  to  pardon  in  cases  of  impeachment. 

They  gave  him  the  power  to  appoint  all  civil  officers,  but  except  tem- 
porarily, when  Congress  is  not  in  session,  such  appointments  are  of  no 
validity  until  confirmed  by  the  Senate. 

They  made  him  Commander  in  Chief  of  the  Army  and  Navy,  but  they 
left  it  to  Congress  to  determine  what  should  be  the  size  and  constitution 
of  the  Army  and  Navy,  and  whether  there  should  be  any  Army  and  Navy. 
They  denied  him  the  power  to  appoint  a  single  officer  of  either  the  Army 
or  the  Navy,  from  the  commanding  officers  to  the  lowest  subalterns,  un- 
less each  of  such  appointments  should  receive  the  confirmation  of  the 
Senate.  They  gave  him  no  power  to  equip  and  maintain  either  Army  or 
Navy  for  a  day.  They  gave  him  no  power  to  make  war,  nor  can  he  of 
himself  conclude  peace.  The  power  to  make  rules  for  the  government 
and  regulation  of  the  Army  and  Navy  is  denied  to  him  and  is  expressly 
conferred  upon  Congress.  It  is  evident  that  as  Commander  in  Chief  of 
the  Army  and  Navy  he  is  but  the  Executive  arm,  and  that  in  that  capacity 
he  is  himself,  in  every  detail  and  particular,  subject  to  the  commands  of 
the  lawmaking  power. 

Finally,  they  made  the  Chief  Executive,  as  well  as  every  other  civil 
officer,  from  the  head  of  the  Cabinet  to  the  most  obscure  civil  official, 
subject  to  trial  and  removal  from  office,  without  appeal,  upon  impeach- 
ment by  the  House  and  conviction  by  the  Senate  —  a  power,  in  much 
conservatism  and  wisdom,  but  seldom  exercised,  but  nevertheless  a  power, 
resting  as  it  does,  without  defined  limits  as  to  what  shall  be  deemed  a  high 
crime  or  misdemeanor,  almost  exclusively  in  the  discretion  of  the  House 
and  Senate,  which  is  the  great  safeguard  against  encroachment  and  offi- 
cial misconduct. 

Mr.  President,  the  fact  is  not  to  be  disguised  that  the  actual  exercise  of 
power  by  the  executive  branch  of  the  Government  in  this  day  far  exceeds 
the  bounds  originally  contemplated  for  it  by  the  Constitution.  The  cor- 
respondence in  relative  position  of  a  president  in  a  republic,  and  of  a  king 
in  a  monarchy ;  the  glamour  of  a  great  office  in  which  one  man  among 
80,000,000  is  chosen  as  the  sole  head  of  a  great  department  of  the  Gov- 
ernment, while  in  the  other  departments  the  honors  are  divided  among 
many ;  the  gigantic  measure  of  patronage  and  removal,  where  he  seems 
to  have  unlimited  power  to  bestow,  or  to  withhold,  or  to  take  away  — 
these  and  other  influences  combine  to  elevate  in  the  popular  mind  the 


THE  TREATY-MAKING   POWER  in 

prerogatives  of  the  President  far  above  the  point  designed  for  them  in  the 
Constitution. 

It  is  a  remarkable  fact  that  in  England,  a  monarchy,  the  constant 
progress  has  been  toward  restraint  of  executive  power  and  the  enlarge- 
ment of  the  power  of  the  legislative  branch  of  the  Government,  until 
now  practically  all  political  power  is  in  the  control  of  the  elected  repre- 
sentatives of  the  people.  It  is  a  fact  still  more  remarkable  that  in  the 
United  States,  designed  distinctively  as  a  representative  republic,  there 
has  been  a  no  less  steady  progress  in  the  direction  of  the  absorption  of 
power  by  the  Executive  and  of  its  practical  surrender  by  Congress. 

Mr.  President,  Senators  are  concerned  and  solicitous  about  the  alleged 
encroachment  of  the  legislative  branch,  or  of  the  Senate  in  its  executive 
capacity,  upon  the  powers  of  the  Executive ;  but  it  seems  to  me  there  is 
very  much  more  reason  why  they  should  be  concerned  about  the  invasion 
by  the  executive  department  of  the  power  conferred  in  the  very  first  sen- 
tence of  the  Constitution  of  the  United  States.  What  is  that  first  sen- 
tence, found  in  Article  I,  section  i  ? 

All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of  the 
United  States,  which  shall  consist  of  a  Senate  and  House  of  Representatives. 

Mr.  BEVERIDGE.  Will  the  Senator  permit  me  to  interrupt  him  right 
there? 

The  VICE-PRESIDENT.  Does  the  Senator  from  Georgia  yield  to  the 
Senator  from  Indiana? 

Mr.  BACON.  I  will  yield;  but  I  want  to  comment  upon  what  I  have 
just  read. 

Mr.  BEVERIDGE.  It  is  merely  to  call  the  attention  of  the  Senator  to 
the  first  section  of  Article  2  of  the  Constitution,  which  says  that  — 

The  executive  power  shall  be  vested  in  a  President  of  the  United  States  of 
America. 

Mr.  BACON.    Who  doubts  that? 

Mr.  BEVERIDGE.  Nobody  doubts  it;  but  the  Senator  is  arguing 
against  it. 

Mr.  BACON.    No;   I  am  not. 

Mr.  BEVERIDGE.  The  Senator  said  the  President  had  no  other  power 
than  a  limited  treaty-making  power  and  the  power  to  see  that  the  laws 
were  faithfully  executed. 

Mr.  BACON.    I  consider  that  latter  an  executive  power. 

Mr.  BEVERIDGE.  Certainly  it  is  one  of  the  executive  powers;  but 
does  the  Senator  say  it  is  all  of  the  executive  power? 

Mr.  BACON.  I  say  that  is  the  generic  meaning  of  the  word  "execu- 
tive." The  Senator  has  diverted  me  from  what  I  was  saying.  I  want 
to  go  back.  I  will  say  to  the  honorable  Senator  that,  when  I  have  finished, 


ii2  AMERICAN   FEDERAL   GOVERNMENT 

if  he  desires  to  revert  to  that  branch  of  the  argument,  I  will  return  to  it 
with  pleasure,  provided  the  Senate  has  the  patience  and  can  be  induced 
to  listen  to  it. 

Mr.  BEVERIDGE.  I  regret  that  I  diverted  the  Senator.  I  merely 
wanted  to  place  immediately  parallel  with  his  statement  about  the  legis- 
lative powers  being  vested  in  Congress,  which  nobody  denies,  the  state- 
ment that  the  executive  power  is  vested  in  the  President  of  the  United 
States,  which  nobody  denies;  and  that  " executive"  powers  include  the 
power  to  make  treaties,  so  that  anything  said  in  the  Constitution  about 
the  making  oc  treaties  is  not  so  much  the  conferring  of  power  as  the  limita- 
tion of  power.  If  nothing  had  been  said  about  treaties  in  the  Constitu- 
tion the  power  to  make  them,  absolute  and  unlimited,  would  have  been 
in  the  President  under  the  grant  to  him  of  ''executive"  powers,  would 
it  not? 

Mr.  BACON.  I  will  not  stop  to  discuss  that  matter  now.  I  confess  that 
I  can  not  see  the  pertinency  of  the  Senator's  suggestion.  If  he  will  permit 
me  to  proceed  I  will  simply  say  to  him  that  the  word  "executive"  comes 
from  the  verb  "to  execute,"  and  it  means  one  who  is  to  execute  the  laws 
of  the  government.  He  is  an  executive  officer  and  not  a  legislative  officer. 
I  have  just  read  this  section  of  the  Constitution,  and  I  read  it  again  after 
the  interruption  in  order  that  it  may  be  in  proper  connection. 

All  legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of  the 
United  States,  which  shall  consist  of  a  Senate  and  House  of  Representatives. 

Is  that  the  law  to-day  ?  It  is  the  law  on  the  book,  but  who  will  say  that 
the  legislative  power  of  this  Government  is  exercised  in  the  two  branches 
of  Congress?  Who  does  not  know  that  the  most  influential  part  of  the 
legislative  power  of  the  Government  is  at  the  other  end  of  the  Avenue  — 
in  the  White  House  ?  I  am  not  speaking  only  of  the  present  occupant, 
although  I  think  he  is  doing  his  full  share  of  it ;  but  it  has  been  so  in  all 
Administrations  in  greater  or  less  degree  within  a  generation.  The  Ex- 
ecutive has  encroached  continuously  upon  the  legislative  branch  of  the 
Government,  and  it  has  never  been  more  pronounced  in  its  encroachment 
than  it  is  to-day. 

Why,  the  time  was  when  one  who  desired  legislation  by  Congress  came 
to  Congress,  and  with  proper  or  improper  means,  if  you  please  —  cer- 
tainly with  proper  means  —  endeavored  to  influence  Congress  in  the  en- 
actment of  certain  legislation.  How  is  it  to-day?  Who  is  it  that  wants 
legislation  who  comes  to  the  House  of  Representatives  or  to  the  Senate? 
We  see  every  day  in  the  newspapers  accounts  of  pilgrimages  to  the 
White  House  for  the  purpose  of  securing  legislation ;  we  see  every  day  in 
the  newspapers  forecasts  as  to  whether  or  not  such  and  such  legislation 
will  be  passed  or  can  not  be  passed,  according  as  it  may  be  announced 
that  it  will  receive  the  support  or  the  active  opposition  of  the  Executive. 


THE  TREATY-MAKING   POWER  113 

Absolutely,  Mr.  President,  I  saw  within  the  past  few  days  an  explanation 
given  that  the  stock  market  had  gone  up  or  down  —  I  have  forgotten 
which  —  in  consequence  of  the  announcement  of  the  position  of  the  Ex- 
ecutive as  to  a  proposed  piece  of  legislation  which  would  affect  prices. 
And  I  have  seen  statements  in  the  papers  that  Members  of  Congress  had 
gone  to  the  White  House  to  solicit  the  aid  of  the  President  to  secure  the 
passage  of  certain  desired  legislation.  More  's  the  pity ! 

Well,  Mr.  President,  as  I  say,  it  is  not  only  this  President,  nor  the  last 
one,  nor  the  one  before,  but  it  has  been  going  on  and  increasing  for  more 
than  a  generation.  It  is  better  that  Senators  and  Representatives  should 
concern  themselves  about  the  question  as  to  whether  or  not  their  own 
prerogatives  and  rights  and  powers  are  being  encroached  upon  rather 
than  be  supersensitive  as  to  whether  or  not  in  the  assertion  of  our  own 
powers  we  may  be  overstepping  the  mark.  Of  course,  we  ought  not  to 
transgress  the  limits  set  to  our  powers  by  Constitution,  not  by  >a  hair's 
breadth,  but  our  particular  and  special  duty  is  to  preserve  and  protect 
against  encroachment  our  own  rights  and  our  own  powers  in  this  matter. 

Mr.  President,  the  time  will  come,  if  this  thing  continues  and  in- 
creases, when  the  question  of  the  attitude  of  Senators  and  Representa- 
tives with  reference  to  any  proposed  legislation  will  not  be  an  important 
matter,  and  when  it  will  be  well  understood  that  such  and  such  legislation 
is  to  be  enacted  or  defeated,  as  the  case  may  be,  regardless  of  the  personal 
views  of  Senators  and  Representatives.  When  that  time  comes  members 
of  each  House  will  cease  to  discuss  measures,  because  of  the  absolute 
uselessness  of  it.  Only  ''Administration  measures"  will  be  enacted,  and 
none  others  will  be  attempted  from  very  hopelessness. 

******** 

So,  Mr.  President,  if  things  continue  to  progress,  it  may  happen  —  I 
think,  though,  it  will  be  a  long  time  before  it  does,  because  our  disposi- 
tion is  different  from  theirs,  and  such  subjection  and  such  servility  it  is 
impossible  to  conceive  will  ever  come  to  the  American  people  —  but  in 
practical  result  it  will  be  so  that  the  question  of  what  this  Congress  shall 
do,  in  any  important  matter  will  be  a  question  not  decided  by  their  own 
judgment  or  the  judgment  of  a  majority,  but  decided  by  other  influences. 
It  is  largely  so  now.  More  and  more  the  idea  will  be  that,  excepting 
"  Administration  measures,"  the  only  business  of  Congress  is  to  pass 
appropriation  bills  and  then  disperse.  It  is  notorious  right  now  that  most 
important  subjects  of  legislation,  such,  for  instance,  as  the  revision  of  the 
tariff,  are  receiving  no  attention,  and  the  question  whether  Congress  will 
or  will  not  legislate  on  them  depends  solely  on  whether  they  will  or  will 
not  be  made  ''Administration  measures."  That,  is  openly  and  undis- 
guisedly  now  recognized  in  the  case  of  the  question  of  the  revision  of 
the  tariff. 

There  can  be  no  condition  more  dangerous  to  the  maintenance  of  free 
government  than  is  found  in  the  concentration  in  the  hands  of  one  man 


ii4  AMERICAN  FEDERAL  GOVERNMENT 

at  the  same  time  of  both  the  executive  power  and  practically  the  power  to 
make  the  laws  he  is  to  execute.  Whatever  may  be  the  form  of  govern- 
ment, when  these  two  powers  are  thus  concentrated  in  the  hands  of  one 
man  the  government  where  that  condition  exists  is  an  autocracy  pure 
and  simple.  It  makes  no  difference  in  practical  effect  whether  that  one 
man  himself  decrees  the  laws  or  whether  they  are  enacted  in  obedience 
to  his  dictation. 

Mr.  BACON.  I  am  opposed  to  the  United  States  Government  attend- 
ing conferences  which  are  in  essence  and  in  fact  political  conferences  as 
to  European  international  matters  and  where  the  other  pretended  in- 
terests are  mere  devices  and  shams  for  the  purpose  of  disguising  the  fact 
of  our  presence  there. 

Mr.  SPOONER.  Well,  Mr.  President,  that  is  the  Senator's  view,  and 
he  is  entitled  to  it.  He  frankly  spates  it.  I  am  in  favor  of  a  proposition 
which  goes  beyond  that.  I  am  in  favor  of  the  United  States  attending 
any  conference  to  which  it  is  invited  by  European  nations  which  in- 
volves in  any  degree  our  interests  —  first,  to  look  after  our  interests,  and, 
second,  to  use  the  kindly  offices  and  the  influence  and  power  of  the 
United  States  to  prevent  war  between  foreign  governments  at  friendship 
with  us.  I  am  not  afraid,  as  the  Senator  seems  to  be ;  I  am  not  distrust- 
ful of  the  present  President  of  the  United  States 

Mr.  BACON.    Now,  Mr.  President  — 

Mr.  SPOONER.  Nor  am  I  distrustful,  Mr.  President,  of  anyone  who 
is  to  succeed  the  present  President.  Taking  our  history  from  the  be- 
ginning to  this  day,  we  have  had  Presidents  of  exceptional  prudence 
and  skill  in  the  conduct  of  our  foreign  relations ;  we  have  had  Secretaries 
of  State  admirably  fitted,  with  here  and  there  possibly  an  exception,  for 
the  discharge  of  the  delicate  functions  involved  in  the  discharge  of  the 
duties  of  their  office.  I  think  the  Presidents  hereafter  and  the  Secre- 
taries of  State  hereafter  will  know  quite  as  well  as  the  Senator  from 
Georgia  or  any  who  are  to  follow  us  here  whether  the  interests  of  the 
United  States  demand  our  representation  at  a  foreign  conference  and 
how  far  we  may  go  as  a  nation,  our  interests  having  been  conserved,  in 
the  employment  of  our  power  and  influence  and  friendship  to  prevent 
war  between  other  nations.  I  put  but  one  limitation,  Mr.  President, 
upon  the  exercise  of  the  constitutional  power  of  a  President  in  that  re- 
spect, and  that  is  that  we  shall  not  attend  any  conference,  for  full  par- 
ticipation in  it,  which  would  involve  us  to  the  extent  of  war  or  the  in- 
curring of  international  hostility;  and  I  believe  I  speak  in  this  respect 
the  sentiments  of  our  people.  They  are  not  afraid  to  go  abroad ;  they 
are  not  afraid  to  sit  in  foreign  assemblages,  to  participate  in  foreign  i 
conferences,  not  under  the  limitations  put  by  the  Senator  from  Georgia, 
which  eliminates  all  such  conferences,  but  on  the  broader  ground 
and  with  the  larger  limitation  which  I  put  upon  them.  So  much  for 
that. 


THE  TREATY-MAKING   POWER  115 

Mr.  President,  I  admit  —  to  come  back  to  what  I  wanted  to  say  to 
the  Senator  —  his  contention  that  the  Senate  may  in  open  session,  so 
far  as  the  power  goes,  adopt  a  resolution  such  as  he  introduced.  I  chal- 
lenge its  propriety.  I  admit,  as  he  contends,  that  it  is  entirely  within 
the  constitutional  capacity  of  the  Senate  to  adopt  in  executive  session  a 
resolution  asking  the  President  to  inform  the  Senate  whether  he  is  nego- 
tiating a  treaty,  if  you  please,  with  Great  Britain  or  with  Germany,  to 
advise  the  Senate  upon  what  subject  and  with  what  view  he  is  carrying 
on  the  negotiation,  to  advise  the  Senate  as  to  its  progress  —  I  grant  all 
that.  That  is  not  in  controversy  at  all.  But  what  I  assert  is,  that  it  in 
no  wise  binds  the  President.  He  may  give  the  information  or  he  may  re- 
fuse to  transmit  it.  He  may  refuse  to  transmit  it  upon  the  ground  that 
its  transmission  would  be  to  the  detriment  of  the  public  interest 

Mr.  BACON.     Will  the  Senator  pardon  me  right  there? 

Mr.  SPOONER.     Wait  a  moment  until  I  finish  the  sentence. 

Mr.  BACON.     Very  well. 

Mr.  SPOONER.  Or  he  may  refuse  to  transmit  it,  and  may  give  no 
reason,  if  he  shall  so  choose,  for  his  declination.  In  other  words  — 

Mr.  BACON.     Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to  the 
Senator  from  Georgia  ? 

Mr.  BACON.     I  will  wait  until  the  Senator  finishes  his  sentence. 

Mr.  SPOONER.  Mr.  President,  what  I  contended,  and  what  the 
Senator,  I  think,  has  not  at  all  weakened  is  that,  as  a  matter  of  power, 
it  is  entirely  in  the  hands  of  the  President,  uncontrolled  and  uncontrol- 
lable, either  by  the  Senate  or  by  both  Houses  of  Congress. 

Mr.  BACON.  Now,  Mr.  President,  if  the  Senator  will  pardon  me  just 
a  moment,  I  want  to  say  that  when  we  come  to  talk  about  a  question  of 
power,  we  mean  that  we  are  discussing  constitutional  powers  —  the 
exercise  of  constitutional  powers  —  we  are  not  talking  about  physical 
power  or  actual  power;  we  are  talking  about  the  legal  right  when  we 
are  talking  about  power. 

Mr.  SPOONER.     Legal  right? 

Mr.  BACON.    Legal  right,  or  legal  duty,  if  it  is  not  a  legal  right. 

Mr.  SPOONER.     Call  it  that. 

Mr.  BACON.  But  what  I  rose  to  say  to  the  Senator  was  this:  The 
Senator  will  read  again,  as  I  know  he  has  read  heretofore,  the  message, 
to  which  I  alluded  in  the  remarks  which  I  submitted  this  morning,  of 
President  Washington  to  the  House  of  Representatives,  where  he  de- 
clined to  furnish  them  with  certain  information  which  they  called  for. 
I  am  not  speaking  now  as  to  what  the  President  can  do,  but  what  he 
ought  to  do,  and  what  is  recognized  in  him  as  proper  to  do.  President 
Washington  said,  that  while  he  refused  to  communicate  it  to  the  House, 
and  gave  as  a  reason  that  such  things  ought  frequently  to  be  kept  secret, 
yet  in  that  case  he  said  it  should  be  communicated  to  the  Senate.  He 


n6  AMERICAN   FEDERAL   GOVERNMENT 

recognized  the  Senate.  He  did  not  say  that  it  should  be  withheld,  but 
he  said  the  secret  should  be  shared  by  the  Senate  with  the  President. 

Of  course  I  recognize  the  fact  that  the  question  of  the  President's 
sending  or  refusing  to  send  any  communication  to  the  Senate  is  a  matter 
not  to  be  judged  by  legal  right,  but  a  question  which  has  always  been 
recognized  as  one  of  courtesy  between  the  President  and  this  body,  and 
which  the  Senate  —  except,  perhaps,  in  the  case  in  which  the  Senator 
took  a  very  notable  part  and  to  which  I  have  had  occasion  heretofore  to 
allude  —  has  always  yielded  to  the  judgment  of  the  President  in  the 
matter  and  has  never  made  an  issue  with  him  about  it. 

Mr.  SPOONER.    I  go  beyond  that. 

Mr.  BACON.  But  any  resolution  which  I  have  introduced  could  have 
been  easily  answered  by  the  President  to  the  effect  that,  in  his  opinion, 
it  was  not  compatible  with  the  public  interest ;  but  the  Senator  and  those 
who  thought  with  him  never  allowed  it  to  get  to  him. 

Mr.  SPOONER.  If  we  had  adopted  the  Senator's  resolution,  intro- 
duced in  public,  cabled  to  every  court  in  Europe,  coming  from  a  distin- 
guished member  of  the  Committee  on  Foreign  Relations  of  this  body, 
which  is  a  part  of  the  treaty-making  power,  and  the  President  had  com- 
municated to  the  Senate  in  secret  session,  how  would  the  matter  have 
stood  abroad  ?  If  we  had  been  honorable  men  and  observed  the  obliga- 
tion of  secrecy,  the  communication  of  the  President  would  have  been 
confined  to  members  of  this  body;  outside  there  would  have  been  this 
implied  arraignment  of  the  President,  or  disgust  of  the  President,  either 
as  to  his  power  or  as  to  his  wisdom,  with  no  reply  whatever  from  the 
President. 

Mr.  BACON.  As  it  happened  in  this  case,  though,  the  State  Depart- 
ment gave  it  out  that  there  was  no  cause  for  secrecy  and  that  anybody 
who  went  there  could  see  it. 

Mr.  SPOONER.     That  is  not  what  I  am  talking  about. 

Mr.  BACON.  A  good  many  have  gone  there  and  have  seen  it.  I  have 
not. 

Mr.  SPOONER.  I  am  talking  upon  the  principle.  The  Senator  says 
"legal  right"  or  " legal  duty."  I  admit  that  we  have  a  right  to  pass 
resolutions  calling  for  any  information  from  the  President ;  but  does  the 
Senator  say  it  is  the  legal  duty  of  the  President  to  send  it? 

Mr.  BACON.  I  do  not  dispute  the  fact  that  there  may  be  occasions 
when  the  President  would  not. 

Mr.  SPOONER.     Who  is  the  judge? 

Mr.  BACON.  The  President,  undoubtedly.  Nobody  has  ever  contro- 
verted that;  and  the  very  resolution  concerning  which  the  Senator  is 
animadverting  was  expressly  conditioned  upon  the  President  viewing 
the  transmission  of  the  information  requested  as  being  compatible  with 
the  public  interest. 

Mr.  SPOONER.    Mr.  President,  it  all  comes  to  an  entire  corroboration 


THE  TREATY-MAKING  POWER  117 

by  the  Senator  of  the  proposition  which  I  made  the  other  day,  and  which 
I  supposed  he  had  spent  some  time  in  attacking,  that  in  the  last  analysis, 
so  far  as  the  question  of  constitutional  power  and  constitutional  duty  is 
concerned,  it  is  absolutely  in  the  President.  He  is  the  sole  organ  of  com- 
munication by  this  Government  with  foreign  governments.  At  his 
option  he  may  consult  the  Senate  in  advance  or  he  may  not.  At  his 
option  he  may  send  information  requested  or  he  may  not.  . 

The  Senator  is  mistaken  when  he  says  that  all  there  is  upon  that  sub- 
ject in  the  Constitution  is  that  line  of  the  sentence  which  gives  the 
President  the  power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties.  That  is  not  all  there  is  in  the  Constitution  upon  which 
I  rely  to  sustain  the  proposition  that  under  our  system  the  President  is 
the  sole  organ  of  negotiation  and  of  communication  between  this  country 
and  foreign  governments.  Under  the  Confederation  the  Congress  was 
the  sole  organ;  the  Congress  negotiated  treaties  and  ratified  treaties; 
the  Congress  received  ambassadors  and  ministers,  and  the  Congress 
practically  sent  ambassadors  and  ministers. 

That  was  all  changed  when  the  Constitution  was  adopted.  It  was 
not  changed  for  any  idle  reason.  It  was  changed  because  it  was  found 
to  be  an  inherent,  elemental,  and  terrific  weakness  in  the  Confederation ; 
and  so,  Mr.  President,  when  the  Constitution  was  formed  they  gave  to 
the  President,  by  and  with  the  advice  and  consent  of  the  Senate,  the 
power  to  make  treaties.  That  is  not  all.  They  vested  in  the  President 
alone  the  power  to  receive  ambassadors,  ministers,  and  other  diplo- 
matic agents.  That  is  not  all.  They  vested  in  him  the  power  to  appoint, 
subject  to  the  advice  and  consent  of  the  Senate  as  to  the  person  only, 
ambassadors,  ministers,  etc. 

A  foreign  minister  or  ambassador  comes  to  this  country.  We  have  no 
function  to  perform  in  relation  to  his  reception.  He  presents  his  cre- 
dentials to  the  President.  The  President  receives  him  or  not  as  he  may 
decide.  Can  Congress  compel  his  reception  or  prevent  his  being  re- 
ceived by  the  President  ?  I  never  heard  that  contended  until  the  Senator 
intimated  it  this  afternoon. 

Mr.  BACON.  Mr.  President,  on  the  contrary,  I  said  exactly  the 
reverse.  I  said  this 

Mr.  SPOONER.  The  Senator  said  they  could  be  sent  away  by  order  of 
Congress. 

Mr.  BACON.  The  Senator  pressed  me  on  that  and  asked  me  how  it 
was  done.  I  said  the  Congress  could  sunder  the  diplomatic  relations 
between  this  country  and  another,  and  that  that  would  be  the  law;  but 
I  expressly  said  that  where  relations  were  existing  between  the  countries, 
so  far  as  the  recognition  of  a  particular  ambassador  was  concerned,  or 
another  ambassador,  that  was  in  the  power  of  the  President.  If  the 
Senator  will  notice  the  stenographic  report,  he  will  find  that  is  exactly 
what  I  said. 


n8  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  SPOONER.  Could  the  framers  of  the  Constitution  any  more  clearly 
have  made  the  President  the  sole  organ  of  communication  between  this 
Government  and  foreign  governments  than  they  did?  Of  course,  the 
power  to  receive  an  ambassador  or  a  foreign  minister  implies  necessarily 
the  power  to  determine  whether  the  government  or  country  from  which 
he  comes  is  independent  and  entitled  to  send  an  ambassador  or  a  min- 
ister. So  the  President  is  authorized  to  determine,  and  he  must  deter- 
mine, when  he  sends  an  ambassador  or  a  minister  to  some  other  country, 
whether  that  country  is  an  independent  country,  a  member  of  the  family 
of  nations,  entitled  to  be  represented  by  an  ambassador  or  minister  here 
and  entitled  to  receive  an  accredited  ambassador  or  minister  from  this 
•country.  When  the  ambassador  or  the  minister  has  any  communication 
to  make  in  relation  to  foreign  affairs,  he  does  not  make  it  to  the  Senate. 
If  it  be  in  the  negotiation  of  a  treaty  —  and  most  treaties  are  negotiated 
here  —  he  has  no  communication  with  the  Senate.  We  will  not  tolerate 
that  ambassadors  or  ministers  or  diplomatic  agents  from  other  countries 
shall  communicate  in  any  way  with  the  Senate  or  with  the  committees 
of  the  Senate. 

Mr.  BACON.  The  Senator  says  that  with  very  great  earnestness. 
Does  the  Senator  understand  that  anybody  has  ever  suggested  such  a 
proposition  ? 

Mr.  SPOONER.    The  Senator  implies  that  almost  of  necessity  — 

Mr.  BACON.     Oh,  no. 

Mr.  SPOONER.  When  he  argues  that  under  the  Constitution  the 
Senate  as  an  executive  body  is  as  much  a  factor  in  the  negotiation  of 
treaties  as  is  the  President  or  is  any  factor  at  all  in  negotiation. 

Mr.  BACON.  Yes ;  with  its  own  peculiar  functions  to  perform.  That 
does  not  imply  that  — 

Mr.  SPOONER.  If  the  Senator  does  not  mean  that,  then  the  Senator 
does  not  mean  anything  by  his  proposition. 

Mr.  BACON.  The  Senator  is  mistaken;  the  Senator  is  not  justified 
in  that  statement. 

Mr.  SPOONER.  Because  to  say  that  the  Senate  is  as  much  a  factor 
under  the  Constitution  in  negotiating  treaties  as  the  President  — 

Mr.  BACON.     I  did  not  say  that. 

Mr.  SPOONER.     Then  I  misunderstood  the  Senator. 

Mr.  BACON.  I  said  in  the  making  of  treaties,  and  I  distinctly  denied 
that  the  making  of  treaties  was  confined  to  the  function  which  would 
succeed  the  transmission  of  that  treaty  to  the  Senate. 

Mr.  SPOONER.  Mr.  President,  I  certainly  am  not  mistaken.  The 
whole  point  of  the  speech,  which  I  had  the  honor  of  making  the  other 
day,  and  which  the  Senator  has  attacked  —  was  my  contention  that  in 
the  negotiation  of  treaties  the  President  is  absolutely  supreme  and  inde- 
pendent of  the  Senate. 

Mr.  SPOONER  rose. 


THE   TREATY-MAKING   POWER  119 

Mr.  BACON.  Pardon  me  a  moment.  But  that  if  the  Senator  meant 
to  include  in  the  term  " negotiation"  not  only  that,  but  everything  which 
related  to  the  framing  of  the  treaty  the  determination  of  its  terms,  and 
everything  else  up  to  the  time  when  it  was  sent  to  the  Senate,  then  his 
definition  of  the  term  "  negotiation "  was  too  broad,  and  I  denied  that 
the  President  had  exclusive  right  in  it;  but  so  far  as  the  term  " nego- 
tiation" could  be  limited  to  its  being  the  organ  of  communication  and  of 
discussion  and  of  original  suggestion,  if  you  please,  to  the  foreign  power, 
I  granted  the  Senator's  position. 

Mr.  SPOONER.  What  does  the  Senator  understand  by  the  negotiation 
of  a  treaty  as  contradistinguished  from  the  making  of  a  treaty ;  dividing 
the  negotiation  of  the  treaty  from  the  point  of  jurisdiction  of  the  Senate 
over  the  treaty? 

Mr.  TILLMAN  rose. 

Mr.  SPOONER.    If  you  please,  one  at  a  time. 

Mr.  BACON.  I  said  that  the  Senator's  position  was  that  "negotia- 
tion" included  everything  up  to  the  time  the  treaty  was  sent  to  the 
Senate;  I  said  that  "negotiation"  was  a  term  which  was  implied  under 
the  term  "make" ;  that  the  making  of  a  treaty  included  the  entire  oper- 
ation by  which  a  treaty  was  conceived  and  framed  and  brought  to  its 
conclusion,  and  as  to  all  such  matters,  even  before  it  was  submitted  to 
a  foreign  power,  while  it  was  under  consideration  as  to  whether  there 
should  be  a  treaty  and  what  its  terms  should  be  —  that  that  was  a  part 
of  the  making  of  a  treaty  and  not  a  part  of  what  technically  the  Senator 
calls  the  "negotiation  of  a  treaty." 

Mr.  SPOONER.  It  would  be  nonsense,  Mr.  President,  to  talk  of  the 
President  negotiating  a  treaty  and  yet  of  his  not  having  the  absolute 
power  to  reduce  to  writing  the  terms  agreed  upon  at  the  end  of  his 
negotiation.  He  must  have  something  to  lay  before  the  Senate.  Is  the 
signing  of  the  treaty  a  matter  that  the  Senate  has  anything  to  do  with  ? 
Until  the  President  is  through  the  Senate's  function  does  not  begin. 

I  admit  that  the  Senate  may  ask  to  be  informed  as  to  the  state  of  the 
negotiation.  The  Senate  may  ask  to  be  informed  whether  the  treaty  has 
been  reduced  to  writing  or  not.  The  Senate  may  ask  the  President  to 
inform  it  as  to  its  terms.  It  may  request  him  to  send  a  copy  in  order  that 
it  may  advise  him,  if  it  wants  to  do  it,  that  it  should  be  signed  or  not,  or 
whether  it  should  be  amended  before  being  signed.  But  the  President 
has  the  same  right  to  refuse  to  do  it  that  the  Senate  has  to  request  it. 

Mr.  BACON.     Yes. 

Mr.  SPOONER.  That  has  been  the  practice  since  the  State  Depart- 
ment was  created  by  the  first  Congress  under  the  Constitution. 

Mr.  BACON.     That  does  not  change  the  fact. 

Mr.  SPOONER.  What  can  the  Senate  do  in  the  way  of  negotiating  a 
treaty  or  reducing  it  to  writing  or  signing  it  ?  Will  the  Senator  tell  me  ? 

Mr.  BACON.     That  is  the  smallest  splitting  of  small  hairs. 


120  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  SPOONER.    I  can  not  split  it  so  fine  that  the  Senator  cannot  see  it. 

Mr.  BACON.  The  question  is  not  as  to  matters  of  detail ;  as  to  whether 
every  "t"  is  crossed  and  every  "i"  is  dotted 

Mr.  SPOONER.    I  did  not  say  that. 

Mr.  BACON.  Or  even  as  to  the  drafting  of  it.  The  question  is  whether 
the  President  has  in  the  Senate  advisers  whom  he  can  bring  to  his  as- 
sistance before  he  submits  a  treaty  to  the  Senate,  or  whether  the  Senate 
is  in  a  position  where,  in  a  case  in  which  it  thinks  there  is  a  public  interest 
requiring  its  intervention,  it  has  the  right  to  suggest  to  him  and  to  advise 
with  him  voluntarily,  without  his  request,  or  whether,  as  the  Senator  says 
in  the  speech  from  which  I  have  read  to-day,  that  no  right  of  the  Senate 
attaches  and  no  duty  of  the  Senate  begins  until  the  President  sends  in  his 
message.  There  is  a  vast  difference  between  the  two. 

Mr.  SPOONER.  Will  the  Senator  tell  me  what  power  the  Senate  has  to 
intervene  in  the  negotiation  of  a  treaty  by  the  President  up  to  the  time 
of  its  signing  ? 

Mr.  BACON.  That  is  the  very  point  I  was  trying  to  bring  to  the  at- 
tention of  the  Senator  when  I  tried  to  differentiate  between  power,  in 
the  sense  of  a  man  who  can  go  and  compel  a  thing,  and  a  legal  right,  as 
contemplated  by  the  law.  The  law  contemplates  that  the  Senate  shall 
be  the  adviser  of  the  President,  not  simply  after  he  has  sent  us  a  treaty, 
but  at  any  time,  either  at  the  instance  of  the  President  or  at  the  will  of 
the  Senate,  in  no  instance  having  the  power  to  compel  the  President  to 
formulate,  as  they  see  fit  to  suggest,  in  the  same  way  that  the  President 
has  no  power  to  compel  the  Senate  to  consent  to  it.  Each  of  them  is 
supreme  in  their  respective  functions. 

Mr.  SPOONER.  If  the  framers  of  the  Constitution  had  intended  to 
make  the  Senate  a  potential  factor  in  the  negotiation  of  treaties,  they 
would  have  done  it. 

Mr.  BACON.     I  think  they  have  done  it. 

Mr.  SPOONER.  They  would  not  have  left  the  President  entirely  at 
liberty  to  refuse  the  Senate  any  participation,  even  to  the  extent  of  in- 
forming the  Senate,  in  response  to  a  courteous  request,  of  the  state  of  the 
negotiations  or  the  subject-matter  of  a  proposed  treaty.  They  would 
have  given  the  Senate  the  right  to  demand,  not  to  request.  They  would 
have  made  it  the  duty,  not  compellable  by  mandamus  —  no,  no ;  they 
would  have  made  it  the  sworn  duty  of  the  President  to  respond  to  the 
request  for  information.  They  did  neither,  Mr.  President.  It  would 
have  been  a  breach  of  constitutional  duty  for  the  President  to  refuse 
information  which  under  the  Constitution  the  Senate  had  a  right  to 
demand,  and  the  President  would  have  been  answerable  on  the  complaint 
of  the  other  House.  Had  they  intended  not  to  invest  the  President  with 
the  absolute  power  of  the  negotiation  of  treaties,  they  would  have  made 
the  Senate's  power  efficient.  They  would  not  have  made  it  a  mere  ques- 
tion of  "If  you  please,  Mr.  President,  the  Senate  would  like  to  be  in- 


THE  TREATY-MAKING  POWER  121 

formed  of  the  status  of  the  negotiation,  if  any  exists,  between  this 
country  and  Great  Britain."  They  never  would  have  left  it  in  that  way. 

Mr.  BACON.  The  Senator  forgets  that  the  only  power  to  negotiate  is 
a  power  implied  by  the  power  to  make,  and  that  the  Constitution,  in 
conferring  the  power  to  make,  confers  it  upon  two  and  not  upon  one. 

Mr.  SPOONER.  But  implied  powers  are  as  perfect  as  expressed 
powers. 

Mr.  BACON.  If  the  Senator  will  permit  me,  he  might  as  well  say,  as 
to  the  failure  of  the  Constitution  to  give  the  power  of  compulsion  upon 
the  President,  that  there  was  equal  failure  in  the  omission  to  give  the 
President  power  to  compel  the  Senate  to  ratify.  The  one  is  as  logical 
as  the  other. 

Mr.  SPOONER.  Not  at  all.  The  Senator  asserts  a  relation  under  the 
Constitution  between  the  Senate  and  the  President  in  respect  to  the 
negotiation  of  treaties  which  he  can  not  sustain,  or  he  imputes  a  purpose 
to  the  framers  of  the  Constitution  which  they  have  not  expressed,  and 
which  they  have  not  in  anywise,  even  by  inference,  made  apparent. 

Mr.  BACON.  There  is  where  we  differ.  I  think  it  is  very  evident  that 
the  Senator  and  I  are  not  going  to  agree. 

Mr.  SPOONER.  In  one  clause  of  the  Constitution  —  and  the  Senator 
remarked  upon  that  —  the  nomination  of  a  person  for  office  is  separated 
from  the  "  advice  and  consent  of  the  Senate."  It  could  not  have  been 
otherwise.  It  would  have  been  quite  absurd  for  the  framers  of  the  Con- 
stitution to  have  said  that  the  President  and  the  Senate  might  " appoint" 
officers.  That  would  have  left  it  open  to  debate  as  to  who  should  take 
the  initiative.  It  would  have  been  unenforceable  for  its  looseness  and  its 
stupidity.  Some  one  must  select  the  official.  That,  of  course,  being  an 
executive  function,  was  given  to  the  President.  That  had  to  be  done 
before  the  Senate  could  " advise  and  consent"  to  the  appointment. 
That  in  the  very  nature  of  things  was  a  condition  precedent.  How  does 
the  other  differ?  The  Senator  saw  a  difference  in  the  language  of  the 
two  provisions,  in  that  in  the  one  case  they  drew  the  line  between  the 
nomination  and  confirmation;  in  the  other  they  did  not. 

The  Senator  forgot  that  negotiation  is  of  necessity  antecedent  to  the 
making  of  a  treaty,  as  completely  as  the  nomination  of  an  officer  is  prece- 
dent to  his  confirmation  or  final  appointment.  It  is  clear  as  the  sunlight 
that  the  framers  of  the  Constitution  intended  the  President  should  ne- 
gotiate the  treaty,  for  he  is  the  organ  of  communication  with  foreign 
governments.  They  gave  that  power  to  no  one  else,  and  the  Senate 
could  not  advise  and  consent  to  the  treaty  until  it  had  been  negotiated  and 
signed  and  laid  before  it.  Somebody  must  do  that  preliminary  work.  If 
it  is  not  given  to  the  President,  it  is  given  to  no  one.  It  was  given  to  the 
President.  He  has  done  it  from  the  foundation  of  the  Government.  No 
one  has  ever  challenged  it.  The  Senate,  to  my  knowledge,  never  has 
demanded  a  right  to  participate  in  the  negotiation  of  treaties.  When- 


122  AMERICAN   FEDERAL   GOVERNMENT 

ever  the  President  has  consulted  the  Senate  it  has  been  entirely  in  the 
exercise  of  an  option  which  the  Constitution  gives  him.  He  may  exercise 
it  or  not.  He  keeps  his  oath  to  support  and  defend  the  Constitution  as 
faithfully  in  the  one  case  as  in  the  other.  The  great  sage  of  Democracy, 
Mr.  Jefferson,  did  not  agree  with  the  Senator  from  Georgia  or  the  Sena- 
tor from  South  Carolina 

Mr.  TILLMAN.     Will  not  the  Senator  allow  me  to  quote  him? 

Mr.  SPOONER.  I  hope  the  Senator  from  South  Carolina  will  please 
not  interrupt  me  at  this  point. 

Mr.  TILLMAN.  I  have  the  words  of  the  sage  right  here,  and  I  want  to 
give  you  some  of  his  utterances. 

Mr.  SPOONER.     Have  you?     Read  them. 

Mr.  TILLMAN.  Thank  you.  I  have  been  waiting  half  an  hour  here 
endeavoring  to  give  some  light  to  my  friend  the  Senator  from  Wisconsin, 
and,  perhaps,  the  Senator  from  Massachusetts. 

Mr.  SPOONER.    I  can  get  light  from  Thomas  Jefferson  on  this  question. 

Mr.  TILLMAN.  You  did  not  think  I  had  this  book  here,  over  a  hundred 
years  old,  and  was  going  to  give  my  own  views? 

Mr.  SPOONER.  I  thought  it  was  a  new  edition  of  the  Constitution,  re- 
vised, amended,  and  annotated  by  BENJAMIN  R.  TILLMAN,  of  South 
Carolina. 

Mr.  TILLMAN.  BENJAMIN  R.  TILLMAN  knows  some  little  about  it. 
He  has  learned  it  from  his  friend  the  Senator  from  Wisconsin.  I  read : 

[Mr.  Jefferson,  Secretary  of  State,  to  Mr.  Morris,  minister  plenipotentiary 
from  the  United  States  to  France.] 

PHILADELPHIA,  August  23,  1793. 

DEAR  SIR:  The  letter  of  the  i6th  instant,  with  its  documents  accompanying 
this,  will  sufficiently  inform  you  of  the  transactions  which  have  taken  place 
between  Mr.  Genet,  the  minister  of  France,  and  the  Government  here,  and 
of  the  painful  necessity  they  have  brought  on  of  desiring  his  recall.  The  letter 
has  been  prepared  in  the  view  of  being  itself,  with  its  documents,  laid  before  the 
executive  of  the  French  Government.  You  will,  therefore,  be  pleased  to  lay  it 
before  them,  doing  everything  which  can  be  done  on  your  part  to  procure  it  a 
friendly  and  dispassionate  reception  and  consideration.  The  President  would, 
indeed,  think  it  greatly  unfortunate  were  they  to  take  it  in  any  other  light,  and 
therefore  charges  you,  very  particularly,  with  the  care  of  presenting  this  pro- 
ceeding in  the  most  soothing  view,  and  as  a  result  of  an  unavoidable  necessity 
on  his  part. 

Mr.  SPOONER.  Is  that  all? 

Mr.  TILLMAN.  Oh,  no. 

Mr.  SPOONER.  Will  the  Senator  give  me  some  idea  as  to  how  long  he 
will  take? 

Mr.  TILLMAN.  Just  long  enough  to  give  you  some  light ;  that  is  all. 

Mr.  Genet,  soon  after  his  arrival,  communicated  the  decree  of  the  National 
Convention  of  February  15,  1793,  authorizing  their  Executive  to  propose  a 


THE  TREATY-MAKING  POWER  123 

treaty  with  us  on  liberal  principles,  such  as  might  strengthen  the  bonds  of 
good  will  which  unite  the  two  nations ;  and  informed  us  in  a  letter  of  May  23 
that  he  was  authorized  to  treat  accordingly. 

This,  you  see,  was  written  in  August. 
The  Senate  being  then  in  recess  — 
Now  listen,  please  — 

The  Senate  being  then  in  recess  and  not  to  meet  again  till  the  fall,  I  apprised 
Mr.  Genet  that  the  participation  in  matters  of  treaty,  given  by  the  Constitution 
to  that  branch  of  our  Government  — 

That  is,  the  Senate  — 

would,  of  course,  delay  any  definitive  answer  to  his  friendly  proposition.  As 
he  was  sensible  of  this  circumstance,  the  matter  has  been  understood  to  lie  over 
till  the  meeting  of  Senate.  You  will  be  pleased,  therefore,  to  explain  to  the 
Executive  of  France  this  delay,  which  has  prevented  as  yet  our  formal  accession 
to  their  proposition  to  treat ;  to  assure  them  that  the  President  will  meet  them, 
with  the  most  friendly  dispositions,  on  the  grounds  of  treaty  proposed  by  the 
national  convention,  as  soon  as  he  can  do  it  in  the  forms  of  the  Constitution; 
and  you  will,  of  course,  suggest  for  this  purpose  that  the  powers  of  Mr.  Genet 
be  renewed  to  his  successor. 

Now,  just  one  comment  and  I  will  let  you  off. 

Mr.  SPOONER.    I  have  the  light  the  Senator  intended  to  give  me. 

Mr.  TILLMAN.  I  am  very  glad  he  got  it,  but  the  point  I  wanted  to 
illustrate  is  this :  Jefferson,  who  was  certainly  familiar  with  the  opinion 
of  the  makers  of  the  Constitution  —  more  so  than  the  Senator  from 
Wisconsin  —  and  who  was  Washington's  Secretary  of  State,  recognizes 
here  the  principle  that  the  Senate  is  such  an  important  part  of  the  treaty- 
making  power  that  he  does  not  feel  willing  even  to  enter  upon  negotia- 
tion with  the  minister  from  France  until  the  Senate  reconvenes. 

Mr.  SPOONER.  That  all  shows  that  Mr.  Jefferson  was  a  very  skillful, 
adroit,  and  accomplished  diplomat. 

Mr.  TILLMAN.    Just  like  my  friend  the  Senator  from  Wisconsin. 

Mr.  SPOONER.  That  was  a  paper  which  Mr.  Jefferson  wrote  for  the 
eye  of  the  French  Government  as  to  a  proposed  treaty  which  Mr.  Jeffer- 
son then  did  not  desire  to  enter  into  and  which  Mr.  Jefferson  never  did 
enter  into. 

But  I  have  a  few  sentences  here  from  Mr.  Jefferson.  I  do  not  know 
whether  it  will  be  any  " light"  to  the  Senator  from  South  Carolina,  but 
in  Mr.  Jefferson's  Opinion  on  the  Powers  of  the  Senate,  a  very  celebrated 
document,  which  he  gave  at  the  request  of  the  President,  this  language 
was  used: 

The  transaction  of  business  with  foreign  nations  is  executive  altogether.  It 
belongs,  then,  to  the  head  of  that  department,  except  as  to  such  portions  of  it  as 
are  especially  submitted  to  the  Senate.  Exceptions  are  to  be  construed  strictly. 


124  AMERICAN   FEDERAL   GOVERNMENT 

That  is  what  Mr.  Jefferson  said  on  this  precise  question  in  a  carefully 
prepared  opinion  for  the  guidance  of  the  President,  whose  Cabinet  officer 
he  was:  To  give  the  opinion  was  a  part  of  his  official  duty  under  the 
Constitution.  I  put  that  against  that  adroit,  diplomatic  letter  for  the  eye 
of  the  French  Government. 

He  says  another  thing  on  the  subject  of  the  powers  of  the  Senate : 

The  Senate  is  not  supposed,  by  the  Constitution,  to  be  acquainted  with  the 
concerns  of  the  executive  department.  //  was  not  intended  that  these  should  be 
communicated  to  them. 


SENATOR  HOAR   ON  DIPLOMATIC  APPOINTMENTS1 

[The  following  selection  from  Senator  Hoar's  autobiography  deals  with  the 
practice,  sometimes  resorted  to,  of  appointing  Senators  to  important  though 
temporary  diplomatic  positions.] 

THE  President  has  repeatedly,  within  the  last  six  years,  appointed 
members  of  the  Senate  and  House  to  be  Commissioners  to  negotiate  and 
conclude,  as  far  as  can  be  done  by  diplomatic  agencies,  treaties  and  other 
arrangements  with  foreign  Governments,  of  the  gravest  importance. 
These  include  the  arrangement  of  a  standard  of  value  by  international 
agreement;  making  the  Treaty  of  Peace,  at  the' end  of  the  War  with 
Spain ;  arranging  a  Treaty  of  Commerce  between  the  United  States  and 
Great  Britain;  making  a  treaty  to  settle  the  Behring  Sea  Controversy; 
and  now  more  lately  to  establish  the  boundary  line  between  Canada 
and  Alaska. 

President  McKinley  also  appointed  a  Commission,  including  Senators 
and  Representatives,  to  visit  Hawaii,  and  to  report  upon  the  needs  of 
legislation  there.  This  last  was  as  clearly  the  proper  duty  and  function 
of  a  committee,  to  be  appointed  by  one  or  the  other  branch  of  Congress, 
as  anything  that  could  be  conceived. 

The  question  has  been  raised  whether  these  functions  were  offices, 
within  the  Constitutional  sense.  It  was  stoutly  contended,  and  I  be- 
lieve held  by  nearly  all  the  Republican  Senators  at  the  time  when  Presi- 
dent Cleveland  appointed  Mr.  Blount  to  visit  Hawaii,  and  required  that 
the  diplomatic  action  of  our  Minister  there  should  be  subject  to  his 
approval,  that  he  was  appointing  a  diplomatic  officer,  and  that  he  had  no 
right  so  to  commission  Mr.  Blount,  without  the  advice  and  consent  of 
the  Senate.  President  McKinley  seemed  to  accept  this  view  when  he 
sent  in  for  confirmation  the  names  of  two  Senators,  who  were  appointed 
on  the  Commission  to  visit  Hawaii.  The  Senate  declined  to  take  action 
upon  these  nominations.  The  very  pertinent  question  was  put  by  an 

1  From  the  Autobiography  of  Senator  Hoar,  II,  48-51;  published  by  Scribner's 
Sons,  N.  Y.,  1905. 


THE  TREATY-MAKING  POWER  125 

eminent  member  of  the  Senate;  if  these  gentlemen  are  to  be  officers, 
how  can  the  President  appoint  them  under  the  Constitution,  the  office 
being  created  during  their  term  ?  Or,  how  can  they  hold  office  and  still 
keep  their  seats  in  this  body  ?  If,  on  the  other  hand,  they  are  not  officers, 
under  what  Constitutional  provision  does  the  President  ask  the  advice 
and  consent  of  the  Senate  to  their  appointment? 

But  the  suggestion  that  these  gentlemen  are  not  officers  seems  to  me 
the  merest  cavil.  They  exercise  an  authority,  and  are  clothed  with 
a  dignity  equal  to  that  of  the  highest  and  most  important  diplomatic 
officer,  and  far  superior  to  that  of  most  of  the  civil  officers  of  the  country. 
To  say  that  the  President  can  not  appoint  a  Senator  or  Representative 
postmaster  in  a  country  village,  where  the  perquisites  do  not  amount 
to  a  hundred  dollars  a  year,  where  perhaps  no  other  person  can  be 
found  to  do  the  duties,  because  that  would  put  an  improper  temptation 
in  the  way  of  the  legislator  to  induce  him  to  become  the  tool  of  the 
Executive  will,  and  then  permit  the  President  to  send  him  abroad;  to 
enable  him  to  maintain  the  distinction  and  enjoy  the  pleasure  of  a  season 
at  a  foreign  capital  as  the  representative  of  the  United  States,  with  all 
his  expenses  paid,  and  a  large  compensation  added,  determined  solely  by 
the  Executive  will;  and  to  hold  that  the  framers  of  the  Constitution 
would  for  a  moment  have  tolerated  that,  seems  to  me  utterly 
preposterous. 

Beside,  it  places  the  Senator  so  selected  in  a  position  where  he  can  not 
properly  perform  his  duties  as  a  Senator.  He  is  bound  to  meet  his 
associates  at  the  great  National  Council  Board  as  an  equal,  to  hear  their 
reasons  as  well  as  to  impart  his  own.  How  can  he  discharge  that  duty, 
if  he  had  already  not  only  formed  an  opinion,  but  acted  upon  the  matter 
under  the  control  and  direction  of  another  department  of  Government? 

The  Senate  was  exceedingly  sensitive  about  this  question  when  it 
first  arose.  But  the  gentlemen  selected  by  the  Executive  for  these 
services  were,  in  general,  specially  competent  for  the  duty.  Their 
associates  were  naturally  quite  unwilling  to  take  any  action  that  should 
seem  to  involve  a  reproof  to  them.  The  matter  did  not,  however,  pass 
without  remonstrance.  It  was  hoped  that  it  would  not  be  repeated.  At 
the  time  of  the  appointment  of  the  Silver  Commission,  I  myself  called 
attention  to  the  matter  in  the  Senate.  Later,  as  I  have  said,  the  Senate 
declined  to  take  action  on  the  Commission  appointed  to  visit  Hawaii. 
But  there  was  considerable  discussion.  Several  bills  and  resolutions 
were  introduced  which  were  intended  to  prohibit  such  appointments  in 
the  future.  The  matter  was  referred  to  the  Commission  on  the  Judiciary. 
It  turned  out  that  three  members  of  that  Committee  had  been  appointed 
by  President  McKinley  on  the  Canadian  Commission.  One  of  them, 
however,  said  he  had  accepted  the  appointment  without  due  reflection, 
and  he  was  quite  satisfied  that  the  practice  was  wrong.  The  Committee 
disliked  exceedingly  to  make  a  report  which  might  be  construed  as  a 


126  AMERICAN   FEDERAL   GOVERNMENT 

censure  of  their  associates.  So  I  was  introduced  to  call  upon  President 
McKinley  and  say  to  him  in  behalf  of  the  Committee  that  they  hoped 
the  practice  would  not  be  continued.  The  task  I  discharged.  President 
McKinley  said  he  was  aware  of  the  objections ;  that  he  had  come  to  feel 
the  evil  very  strongly ;  and  while  he  did  not  say  in  terms  that  he  would  not 
make  another  appointment  of  the  kind,  he  conveyed  to  me,  as  I  am  very 
sure  he  intended  to  do,  the  assurance  that  it  would  not  occur  again.  He 
said,  however,  that  it  was  not  in  general  understood  how  few  people 
there  were  in  this  country,  out  of  the  Senate  and  House  of  Representa- 
tives, qualified  for  important  diplomatic  service  of  that  kind,  especially 
when  we  had  to  contend  with  the  trained  diplomatists  of  Europe,  who 
had  studied  such  subjects  all  their  lives.  He  told  me  some  of  the  diffi- 
culties he  had  encountered  in  making  selections  of  Ministers  abroad, 
where  important  matters  were  to  be  dealt  with,  our  diplomatic  repre- 
sentatives, having,  as  a  rule,  to  be  taken  from  entirely  different  pursuits 
and  employments. 

That  Congress  in  the  past  has  thought  it  best  to  extend  rather  than 
restrict  this  prohibition  is  shown  by  the  statute  which  forbids,  under  a 
severe  penalty,  members  of  either  House  of  Congress  from  representing 
the  Government  as  counsel. 


THE   SENATE 

[A  voluminous  literature  has  been  produced  in  recent  years  upon  the  United 
States  Senate.  This  literature  has  been  largely  critical,  censuring  the  temper 
and  action  of  this  important  legislative  body.  The  three  general  articles  here 
reproduced  will  give  a  good  idea  of  the  discussion.  They  are  representative 
articles  written  by  men  of  standing  and  importance,  men  also  in  a  position  to 
judge  of  the  Senate  by  direct  observation.  The  reader  will  be  able  to  form  his 
own  opinion  of  the  quality  and  temper  of  senatorial  action  from  the  many 
extracts  from  Senate  debates  contained  in  this  collection.] 


THE  PLACE   OF  THE  SENATE   IN  OUR   GOVERNMENT1 
By  HENRY  LITCHFIELD  WEST 

ACCORDING  to  a  tradition,  more  or  less  authenticated,  it  was  George 
Washington  who  remarked  that  the  Senate  of  the  United  States  was  the 
saucer  into  which  the  hot  tea  of  the  House  of  Representatives  was  poured 
to  cool.  Some  idea  of  this  kind  was  certainly  in  the  minds  of  the  framers 
of  the  Constitution.  Madison  suggested  that  the  Senate  ought  to  be 
so  constituted  as  to  protect  the  opulent  minority  against  the  changing, 
irresponsible,  and  turbulent  majority.  Hamilton,  who  did  not  believe 
that  the  voice  of  the  people  was  the  voice  of  God,  would  have  had  Sen- 
ators appointed  for  life.  More  than  one  of  the  Constitution-makers  re- 
ferred to  the  Senate  as  the  Privy  Council  of  the  President ;  and,  almost 
without  exception,  they  regarded  it  as  the  brake  of  conservatism  upon 
the  wheels  of  national  legislation.  They  found  its  model  in  the  corir 
federation  of  Grecian  States,  "  where  each  city,  however  different  in 
wealth,  strength,  or  other  circumstances,  had  the  same  number  of  deputies 
and  an  equal  voice  in  everything  that  related  to  the  concerns  of  Greece." 
The  States  of  the  United  Netherlands,  the  Confederated  Cantons  of 
Switzerland,  and,  in  some  degree  at  least,  the  British  House  of  Lords 
were  all  replete  with  suggestion  for  the  constructive  statesmen  who 

1    The  Forum,  June,  1901,     Reproduced  by  permission.     Copyright. 

127 


I28  AMERICAN  FEDERAL  GOVERNMENT 

created  the  American  Senate.  And  yet,  while  this  is  true,  the  fact  re- 
mains, as  Fisher  points  out  in  his  "Evolution  of  the  Constitution,"  that 
the  Senate  is  really  the  outgrowth  of  our  own  experience.  It  is  the 
gradual  development  from  the  Governor's  Council  of  colonial  times.  As 
early  as  1769  the  members  of  the  Council  of  Massachusetts  were  chosen 
to  represent  certain  localities  or  great  districts,  a  function  still  preserved 
in  the  representation  of  each  State  by  two  Senators,  irrespective  of  area, 
wealth,  or  population. 

Within  the  last  few  years  the  Senate  of  the  United  States  has  assumed 
so  dominant  a  part  in  national  legislation  that  it  becomes  interesting 
and  instructive  to  consider  how  far  the  original  idea  of  its  establish- 
ment has  been  maintained  in  the  evolution  of  our  government.  Wash- 
ington's quaint  and  expressive  phrase  still  has  some  meaning  and 
significance.  The  Senate  is  still  the  conservative  branch  of  the  Congress. 
Its  members,  elected  for  six  years  by  State  Legislatures,  decide  national 
questions  with  minds  less  perturbed  by  fear  of  popular  clamor  than  the 
Representatives,  whose  reelection,  after  a  brief  term  of  two  years,  is 
dependent  upon  the  suffrage  of  a  proverbially  fickle  public.  The  Sena- 
torial view  is  of  a  wider  horizon.  It  is  less  subservient  to  prevailing 
sentiment,  but,  it  is  worth  while  to  note,  the  register  of  its  judgment 
has  generally  been  accurate. 

Take,  for  instance,  the  famous  struggle  over  the  so-called  Force  Bill, 
a  measure  passed  by  a  partisan  House  of  Representatives  in  the  first  flush 
of  political  victory.  The  contest  waged  by  a  skilfully  led  and  determined 
minority  in  the  Senate  resulted  in  the  defeat  of  the  proposed  law.  The 
wisdom  of  that  outcome  will  not,  I  take  it,  be  seriously  questioned  to- 
day. The  enactment  of  the  Force  Bill  would  have  solidified  the  South 
politically,  and  would  have  retarded  for  several  decades  the  material  de- 
velopment which  has  blessed  that  section.  The  pouring  and  cooling  pro- 
cess which  resulted  in  its  defeat  was  undoubtedly  for  the  country's  good. 

Not  content,  however,  with  merely  refusing  to  cooperate  with  the 
House  in  the  enactment  of  proposed  legislation,  or  with  revising  and 
editing  so  to  speak,  the  bills  which  come  to  it  from  the  lower  body,  the 
Senate  of  the  United  States  has  been  responsible,  in  late  years,  for 
numerous  measures  of  great  importance.  The  Wilson  Tariff  Bill,  as 
framed  in  the  House  of  Representatives,  was  discarded  by  the  Senate 
and  a  new  measure  substituted ;  the  latter  being  accepted  by  the  House 
with  scarcely  a  whisper  of  opposition.  Identically  the  same  experience 
befell  the  resolutions  passed  by  the  House  declaring  that  Spain's  rule  in 
Cuba  was  intolerable  and  not  to  be  endured ;  while,  still  more  recently, 
we  have  seen  the  Senate  originate  two  of  the  most  important  measures 
ever  enacted  by  Congress  —  the  amendments  to  the  Army  Appropriation 
Bill,  one  of  which  bestowed  upon  the  President  absolute  authority  to 
govern  the  Philippines,  while  the  other  outlined  the  conditions  precedent 
to  the  withdrawal  of  the  American  troops  from  Cuba.  These  amend- 


THE   SENATE  129 

ments,  fraught  with  consequences  of  the  most  far-reaching  character,  were 
adopted  bodily  by  the  House  of  Representatives  after  the  briefest  possible 
consideration.  From  the  moment  that  the  Senate  engrafted  these  amend- 
ments upon  the  Army  Bill,  it  was  a  foregone  conclusion  that  the  House 
would  swallow  them  without  the  dotting  of  an  "  i "  or  the  crossing  of  a  "  t." 
It  must  not  be  supposed  that  the  Representatives  themselves  are 
either  ignorant  of  or  indifferent  to  this  condition  of  affairs.  On  the 
contrary,  one  of  the  most  emphatic,  not  to  say  passionate,  speeches  in 
the  closing  hours  of  the  last  Congress  was  a  protest  by  Representative 
Cannon,  Chairman  of  the  Committee  on  Appropriations,  against  the 
arrogance  of  the  Senate  in  assuming  to  dictate  to  the  House  in  the  mat- 
ter of  legislation.  And  yet  the  House  is,  in  itself,  largely  responsible 
for  the  very  situation  against  which  it  rebels.  When,  under  Mr.  Reed, 
rules  were  enacted  which  made  the  Speaker  of  the  House  the  autocrat 
of  Congress  the  decadence  of  the  House  began.  The  members,  indi- 
vidually and  collectively,  surrendered  themselves  into  the  keeping  of  one 
man,  who  wields  a  despotism  as  complete  as  that  of  the  proverbial  Czar. 
It  is  the  Speaker  who  appoints  the  committees,  arranging  their  person- 
nel so  as  to  secure  harmony  with  his  own  views ;  it  is  the  Speaker  who, 
as  the  deciding  member  of  the  Committee  on  Rules,  determines  whether 
the  House  shall  or  shall  not  consider  certain  measures;  and,  finally,  it 
is  the  Speaker  to  whom  each  Representative  must  appeal  for  recognition 
upon  the  floor  of  the  House.  The  individual  member,  unless  he  be  the 
favored  appointee  to  some  prominent  committee  chairmanship,  is  rarely 
a  factor  in  the  proceedings  of  the  House.  The  concentration  of  power 
in  the  Speaker's  hands  has  practically  destroyed  all  personality.  In- 
dignant constituencies  have  sent  back  to  private  life  for  apparent  in- 
efficiency members  who  were  never  accorded  an  opportunity  to  prove 
their  worth.  Their  political  existence  has  been  crushed  out  beneath 
the  Juggernaut  of  despotic  rules.  The  Washington  correspondents,  who 
are  trained  to  observe  the  trend  of  national  events,  fully  realize  the 
change  which  has  come  over  the  House.  There  was  a  time,  years  ago, 
when  every  newspaper  representative  in  the  National  Capital  appreciated 
the  necessity  of  acquainting  himself  with  the  temper  of  the  House  upon 
every  important  proposition.  To-day  the  labor  is  unnecessary.  If  the 
correspondent  knows  the  attitude  of  the  Speaker  the  problem  is  at  once 
solved. 

It  is  worth  while  to  understand  this  situation  thoroughly,  because, 
it  seems  to  me,  it  explains  the  loss  of  prestige  which  the  House  has 
sustained  and  the  importance  which  the  Senate  has  assumed.  In  the 
Senate  the  individual  is  supreme.  Any  Senator  may  address  the  pre- 
siding officer  and  secure  recognition  at  any  time  when  the  floor  is  not 
occupied  by  a  colleague.  He  can  offer  a  resolution  upon  any  subject, 
and,  through  admirable  rules,  can  place  the  Senate  upon  record  as  to  its 
disposition.  If  the  majority  of  the  Senate  desires  to  send  the  resolution 

9 


I3o  AMERICAN   FEDERAL   GOVERNMENT 

to  some  committee  crypt,  where  it  shall  remain  buried  until  the  campaign, 
for  instance,  is  safely  over,  the  reference  is  secured  only  after  a  yea-and- 
nay  vote.  If  the  resolution  goes  upon  the  calendar,  any  Senator  can  at 
any  time  move  that  the  Senate  proceed  to  its  consideration  —  a  question 
which  must  be  determined  without  debate.  This  again  places  the  Senate 
upon  record,  and  is  a  proceeding  absolutely  unknown  in  the  House. 
Thus,  in  the  closing  hours  of  the  last  Congress,  Senator  Jones,  of  Arkan- 
sas, the  leader  of  the  Democratic  minority,  proved  a  thorn  in  the  side  of 
the  Republican  party  by  demanding  consideration  of  his  resolution  dis- 
charging the  Committee  on  the  Judiciary  from  further  consideration  of 
the  Anti-Trust  Bill.  The  effort  was  not  successful,  the  Republican 
majority  voting  solidly  in  the  negative ;  but  Senator  Jones  had  placed  the 
responsibility  where  it  belonged.  Almost  every  day  the  record  is  made  up 
in  the  Senate  upon  some  test  question,  because  the  right  of  the  individual 
is  not  abridged  or  restricted. 

This  preeminence  of  the  individual  in  the  Senate  of  the  United  States 
goes  to  a  remarkable  and  much-criticised  extent.  As  long  as  any  Sen- 
ator desires  to  speak  upon  any  bill  under  consideration,  just  so  long  must 
hearing  be  accorded  and  a  vote  postponed.  This  is  what  is  popularly 
known  as  unlimited  debate.  It  is  the  one  thing  which  makes  the  Sen- 
ate absolutely  unique  in  legislative  bodies.  Only  recently  the  River 
and  Harbor  Appropriation  Bill  failed  to  reach  a  final  vote,  because  a 
Senator  occupied  the  floor  during  the  last  thirteen  hours  of  the  session, 
ostensibly  criticising  the  measure,  but,  in  reality,  talking  against  time, 
with  the  knowledge  that  when  the  hands  of  the  clock  reached  the  hour 
of  noon,  Congress  would  expire  by  limitation,  and  the  bill  would  die. 
This  performance,  extremely  irritating  to  Senators  who  were  interested 
in  the  generous  appropriations  of  the  bill,  has  led  to  a  renewal  of  previ- 
ous efforts  to  amend  the  rules  of  the  Senate,  so  as  to  provide  for  closure, 
under  certain  conditions. 

These  endeavors  have  failed  in  the  past,  and  there  is  no  reason  to 
anticipate  success  in  the  future.  They  ought  to  fail.  Under  no  cir- 
cumstances ought  there  to  be  limitation  of  debate  in  the  Senate  of  the 
United  States.  It  is  the  only  forum  where  great  and  grave  public  ques- 
tions can  be  thoroughly  and  exhaustively  discussed.  This  high  position, 
once  held  by  the  House,  has  been  abdicated  by  that  body.  We  have 
seen  a  bill  which  proposed  a  complete  revision  of  the  tariff  considered  in 
the  House  for  a  few  days  and  then  passed,  when  only  a  score  of  pages, 
out  of  two  or  three  hundred,  had  received  attention.  Crude,  ill-digested, 
and  lacking  all  sense  of  proportion,  the  measure  has  been  hastily  sent  to 
the  Senate  with  all  its  imperfections  upon  its  head.  Provisions  which 
were  of  questionable  propriety  escaped  criticism,  because  they  were 
buried  in  the  pages  which  were  not  reached ;  and,  for  the  same  reason, 
important  amendments,  upon  which  the  House  was  anxious  to  vote, 
remained  unoffered  upon  the  members'  desks. 


THE   SENATE  131 

Very  different  was  the  course  pursued  in  the  Senate,  where  a  rule 
arbitrarily  fixing  a  day  and  an  hour  when  a  vote  must  be  taken  is  a 
thing  unknown.  Conscious  that  it  could  not  be  hampered,  the  minority 
at  once  prepared  to  assert  itself.  It  proceeded  deliberately  to  question 
the  Chairman  of  the  Finance  Committee  as  to  the  reasons  which  influ- 
enced the  figures  of  each  schedule,  and  the  answer  was  necessarily  forth- 
coming. If  the  reply  was  not  satisfactory  or  convincing,  there  was  a 
possibility  that  the  error  might  be  remedied;  or,  if  no  alteration  was 
allowed  by  the  majority,  the  explanation  and  the  action  went  upon  the 
record,  to  be  read  and  judged  by  all  men.  In  the  case  of  the  McKinley 
Bill  the  Democrats  were  the  inquisitors;  while,  when  the  Wilson  tariff 
measure  was  under  consideration,  the  Republicans  assumed  the  offensive. 
In  both  instances  several  weeks  were  occupied  in  the  discussion  —  a 
period  during  which  there  was  much  criticism  of  the  deliberation  of  the 
Senate.  The  result,  however,  in  each  case,  proved  the  wisdom  of  delay, 
for  the  proposed  law  was  vastly  improved  before  its  final  enactment.  The 
tariff  measures  which  bear  the  names  of  McKinley,  Wilson,  and  Dingley, 
were  largely  framed  in  the  Senate,  while  the  same  is  true  of  the  law  re- 
cently passed  to  reduce  the  taxation  imposed  during  the  war  with  Spain. 

The  value  of  unlimited  debate  in  the  Senate  has  been  so  completely 
established  in  innumerable  instances  that  it  hardly  seems  worth  while 
to  continue  an  argument  in  its  favor.  On  the  other  hand,  it  will  be 
urged,  and  with  truth,  that  many  measures  have  been  prevented  from 
reaching  a  final  vote  because  their  opponents  have  talked  them  to  death. 
It  is  equally  true,  however,  that  no  measure  ever  failed  of  enactment 
which  had  behind  it  a  persistent,  earnest  majority,  supported  by  public 
opinion.  The  defeat  of  the  Force  Bill  is  often  cited  as  a  thwarting  of 
the  will  of  the  majority  of  the  Senate ;  but  the  fact  is  that,  during  the 
long  struggle  over  that  measure,  the  minority  became  a  majority,  and 
the  Force  Bill  was  finally  displaced  by  a  proposition  looking  to  the  free 
coinage  of  silver.  In  the  last  Congress  the  Ship  Subsidy  Bill  failed  to 
reach  a  vote ;  but  there  never  was,  at  any  time,  a  solid  Republican  sup- 
port for  that  measure.  Some  Republican  Senators  openly  opposed  it; 
others  gave  it  only  a  half-hearted  assistance ;  and  many  others  encouraged 
the  Democrats  who  planned  and  executed  the  campaign  of  debate.  The 
discussion  exposed  many  of  the  inequalities,  injustices,  and  iniquities  of 
the  measure ;  so  that  when  the  subject  is  considered  at  the  next  session 
of  Congress  a  more  satisfactory  bill  will  be  enacted. 

And  this  brings  to  mind  another  fact.  All  the  great  issues  of  recent 
political  campaigns  have  been  formulated  through  Senatorial  debates. 
This  is  especially  true  of  the  silver  question,  which  leaped  into  national 
prominence  through  the  three-months'  struggle  over  the  repeal  of  the 
Sherman  Silver-Purchasing  Law.  In  those  three  months  the  financial 
problem  was  debated  as  it  never  had  been,  and  never  could  be,  in  the 
House;  and  it  is  worth  while  emphasizing  the  fact  that  if  the  bill  had 


I3 2  AMERICAN   FEDERAL   GOVERNMENT 

been  brought  to  a  vote  immediately  after  being  reported  to  the  Senate, 
it  would  have  been  defeated.  The  prolongation  of  the  debate  secured 
the  majority  necessary  for  its  passage.  In  the  Senate,  and  in  the  Senate 
alone,  has  the  Philippine  question  received  that  thoroughness  of  examina- 
tion to  which  it  is  entitled;  and  the  same  might  be  said  of  every  other 
important  issue  before  the  country. 

The  power  of  the  individual  is  still  further  demonstrated  in  the  Sen- 
ate of  the  United  States  through  the  fact  that  nearly  all  minor  legislation 
is  enacted  by  unanimous  consent ;  the  objection  of  a  single  Senator  being 
generally  fatal  to  the  passage  of  any  bill.  This  is  a  tremendous  power 
to  lodge  in  an  individual  even  though  he  be  a  Senator  of  the  United 
States;  but  it  is  to  the  credit  of  the  members  of  the  Senate  that  the 
privilege  is  rarely,  if  ever,  abused.  Objections  are,  of  course,  not  in- 
frequent ;  but  when  they  are  met  by  amendments  or  satisfactory  explana- 
tions, they  are  almost  invariably  withdrawn.  In  the  closing  days  of  a 
session  unanimous  consent  is  absolutely  essential  to  the  consideration 
of  any  measure.  While  this  may  result  in  the  failure  of  some  laudable 
propositions,  the  statute  books  are  also  protected  against  the  imposition 
of  much  unwise  and  hasty  legislation.  The  Senator  who  objects  does 
so  publicly,  and  is  answerable  to  his  own  conscience  and  to  his  constit- 
uency for  his  action.  If  he  thus  records  his  opposition,  it  is  safe  to 
assume  that  he  believes  himself  to  be  acting  wisely;  and  experience 
proves  that  Senators  are  restrained  from  undue  objection  by  a  wholesome 
regard  for.  the  sentiments  of  their  colleagues.  It  would  have  been  in  the 
power  of  Senator  Tillman,  for  instance,  to  have  blocked  all  legislation  as 
soon  as  he  had  learned  that  his  much-desired  appropriation  of  $250,000 
for  the  Charleston  exposition  had  been  sacrificed.  But,  as  a  matter  of 
fact,  he  did  nothing  of  the  kind.  He  could  not  have  stood  up  against 
the  torrent  of  indignation  which  would  have  been  poured  out  upon  him. 
Senator  Carter,  it  is  true,  did  defeat  the  River  and  Harbor  Bill ;  but  he 
was  fully  aware  that  in  so  doing  he  was  acting  in  harmony  with  the 
sentiment  of  many  of  his  colleagues,  who  regarded  the  bill  as  extravagant 
and  harmful.  If  it  had  not  been  for  the  existence  of  this  feeling,  Mr. 
Carter  never  would  have  dared  to  take  his  stand  in  opposition,  even 
though  he  was  about  to  retire  to  private  life. 

In  its  own  way,  the  Senate  accomplishes  more  work  —  that  is,  it 
enacts  more  bills  —  than  the  House  of  Representatives.  No  Senator 
objects  for  the  mere  sake  of  objecting ;  because  he  is  aware  that  if  he  is 
captious,  he  will  himself  encounter  innumerable  stumbling-blocks  when 
he  seeks  the  passage  of  measures  in  which  he  is  interested.  He  is  only 
one  of  ninety  Senators,  any  one  of  whom  has  every  privilege  which  he 
enjoys.  It  is  the  fact  that  each  Senator  is  a  power  unto  himself  that 
gives  the  Senate  its  peculiar  place  in  our  system  of  government.  When 
a  vote  upon  a  treaty  or  an  important  measure  is  to  be  convassed,  it  is 
necessary  to  know  the  individual  view  of  each  Senator,  a  task  frequently 


THE   SENATE  133 

surrounded  with  some  difficulty.  There  is  more  independence  of  thought 
and  action  in  the  Senate  than  in  the  House.  Instances  where  two  Sen- 
ators of  the  same  political  party  from  the  same  State  vote  upon  opposite 
sides  of  the  same  question  are  by  no  means  rare,  and,  of  late  years,  have 
become  quite  common.  Party  leaders,  therefore,  take  occasion,  during 
the  days  occupied  in  a  prolonged  debate,  to  investigate  the  condition  of 
their  own  ranks,  and  strengthen,  by  such  pressure  as  may  be  most  effec- 
tive, any  weakness  they  may  discover.  The  very  necessity  for  this  pre- 
liminary canvass  emphasizes  the  individuality  of  each  Senator,  and  makes 
him  a  power  to  be  courted  or  feared. 

The  right  of  any  Senator  to  speak  at  any  time,  upon  any  subject,  and 
at  any  length,  develops  orators  and  debaters.  No  man  who  possesses  a 
talent  in  this  direction  need  lack  for  opportunity  to  prove  his  capacity. 
If  he  is  really  a  great  orator,  if  he  actually  demonstrates  his  logical  and 
thoughtful  mind,  he  forges  to  the  front,  and  must  be  reckoned  with  by 
those  who  assume  leadership.  If,  on  the  other  hand,  he  is  dull  and 
slow-witted,  lacking  both  strength  of  thought  and  forcefulness  of  ex- 
pression, he  will  sink  by  his  own  weight.  The  right  to  speak  cannot 
be  denied  him,  but  he  will  not  command  an  audience ;  and  very  promptly 
will  he  recognize  that  he  has  ceased  to  be  a  factor  of  importance.  In 
olden  times,  a  new  Senator  maintained  silence  for  a  year  or  two  before 
affording  his  colleagues  an  opportunity  to  judge  of  his  capacity.  He 
familiarized  himself  with  his  surroundings ;  he  felt  the  ground  securely 
under  his  feet,  so  to  speak,  before  he  essayed  to  venture  into  public 
notice.  The  debut  of  a  Senator  was  in  those  days  a  noteworthy  event. 
It  was  his  crucial  test ;  and  it  was  not  without  some  fear  and  trembling 
that  he  invited  the  verdict  of  his  colleagues.  Nowadays,  however,  in 
the  haste  and  rush  of  modern  legislation,  few  Senators  undergo  the  term 
of  probation  which  was  formerly  customary.  They  plunge  at  once  into 
the  vortex  of  debate.  Sometimes  they  emerge  safely  and  creditably ;  but 
more  frequently  they  are  carried  underneath  the  surface,  and  in  subse- 
quent obscurity  pay  the  penalty  of  their  rashness. 

Within  the  last  few  years  some  rich  men  have  secured  seats  in  the 
Senate,  with  comparative  ease,  through  the  manipulation  of  State  politics ; 
and  their  presence  has  given  that  body  the  nickname  of  "The  Million- 
aires' Club."  As  a  matter  of  fact,  a  large  majority  of  the  Senators  are 
poor  men.  This  is  especially  true  of  those  who  represent  Southern  States, 
who  are  proverbially  lacking  in  plenitude  of  this  world's  goods.  The 
millionaires  in  the  Senate  can  be  counted  upon  the  fingers.  Some  of 
them  are  notoriously  rich,  like  Clark,  of  Montana,  while  large  fortunes 
are  undoubtedly  possessed  by  Hanna,  of  Ohio ;  McMillan,  of  Michigan ; 
Elkins,  of  West  Virginia ;  Kearns,  of  Utah ;  Proctor,  of  Vermont ;  Al- 
drich,  of  Rhode  Island;  Turner,  of  Washington;  Platt  and  Depew,  of 
New  York ;  and  Wetmore,  of  Rhode  Island.  To  two-thirds  of  the  Sen- 
ators the  annual  salary  of  $5,000  is  a  consideration  not  to  be  despised. 


134  AMERICAN  FEDERAL  GOVERNMENT 

There  are  few  perquisites  to  eke  out  this  comparatively  meagre  compen- 
sation —  none,  in  fact,  worth  mentioning.  The  Government  provides  one 
or  two  clerks  to  attend  to  the  Senator's  correspondence,  which  is  always 
heavy ;  it  allows  a  minimum  of  free  stationery ;  and  it  returns  some  of 
his  travelling  expenses. 

There  is  opportunity,  of  course,  to  make  money  through  speculation; 
and  some  Senators  avail  themselves  of  it.  One  Senator,  who  was  a  large 
holder  of  Washington  real  estate,  increased  its  value  very  materially  by 
steering  legislation  for  street  improvements  in  its  direction ;  while  every 
manipulation  of  tariff  schedules  and  of  internal  revenue  taxation,  affect- 
ing steel  and  iron,  tobacco,  whiskey,  and  sugar,  reveals  the  close  con- 
nection between  the  Senate  of  the  United  States  and  Wall  Street.  But 
this  acquisitiveness,  to  call  it  by  no  harsher  name,  is,  after  all,  confined 
to  the  few  Senators  who  are  noted  for  their  commercial  instincts.  The 
majority  of  Senators  do  not  speculate.  They  content  themselves  with 
their  modest  salary;  and  how  they  manage  to  live  upon  it  is  a  daily 
wonder.  The  demands  upon  the  Senatorial  purse  are  incessant.  Every 
Senator  is  persistently  approached  by  stranded  constituents,  who  expect, 
and  generally  receive,  financial  assistance.  Unless  he  elects  to  live  in 
absolute  retirement,  it  is  also  incumbent  upon  him  to  maintain  some 
social  position.  Occasionally  a  Senator  will  come  to  Washington  with 
the  idea  that  he  can  be  something  or  somebody  upon  $5,000  a  year.  It 
does  not  take  many  months  to  show  him  the  futility  of  the  effort.  In 
fact,  it  is  impossible  for  a  Senator  to  save  anything  from  his  salary,  un- 
less he  hides  in  a  back  street,  burying  himself  like  a  hermit,  neither 
entertaining  nor  being  entertained.  In  the  diplomatic  service,  the  lead- 
ing ambassadorial  positions  are  bestowed  upon  men  whose  entourage  can 
be  maintained  by  their  private  fortunes ;  and  the  time  does  not  seem  to 
be  far  distant  when  the  Senate  of  the  United  States  will  be  composed  in 
large  degree  of  rich  men,  simply  because  a  poor  man  can  not  afford  to 
accept  the  position. 

It  is  to  the  credit  of  the  Senate  that  wealth  is  not  yet  the  standard 
by  which  its  members  judge  each  other.  There  are  millionaires  in  the 
Senate  who  occupy  insignificant  places,  who  are  never  consulted  by  their 
colleagues,  and  who  simply  follow  where  others  lead.  On  the  other  hand, 
men  who  possess  brains  are  consequential  factors  in  determining  legis- 
lation, although  in  material  wealth  they  may  be  as  poor  as  church  mice. 
A  man  can  not  rise  to  eminence  in  the  Senate  by  wealth  alone.  Herein, 
it  seems  to  me,  is  much  basis  for  felicitation.  Until  this  condition 
changes,  the  Senate  will  continue  to  be,  what  it  is  to-day,  the  greatest 
legislative  body  in  the  world.  Of  course,  the  time  may  come  when  the 
sordid  influences  which  measure  a  man  by  the  size  of  his  bank  account 
may  control  the  Senate.  Let  us,  at  least,  be  thankful  that  this  time 
has  not  yet  arrived ;  and  let  us  hope,  for  the  sake  of  the  Republic,  that 
it  will  never  come. 


THE   SENATE  135 

THE  POWER   OF   THE   SENATE1 
By  S.  W.  McCALL,  MEMBER  OF  CONGRESS  FROM  MASSACHUSETTS 

SHORTLY  before  daybreak,  in  the  closing  night  of  the  session  of  the 
Congress  which  came  to  an  end  on  the  4th  of  last  March,  Mr.  Cannon 
made  a  remarkable  speech.  One  of  the  great  appropriation  bills  of  vital 
importance  to  the  government  was  in  conference  between  the  two  Houses. 
Unless  it  should  pass  before  twelve  o'clock  on  that  day  it  would  be  neces- 
sary to  have  an  extra  session,  or  the  wheels  of  some  of  the  great  govern- 
mental departments  would  be  stopped.  A  Senator  had  delivered  an 
ultimatum  that  an  ancient  claim  of  his  state  should  be  fastened  upon  the 
bill,  or,  as  an  alternative,  he  would  talk  until  the  end  of  the  session  and 
defeat  the  measure.  Under  the  rules  of  the  Senate  it  was  clearly  in  the 
power  of  one  Senator  to  carry  on,  as  long  as  his  physical  strength  would 
last,  the  appearance  of  debate,  which  would  in  no  fair  sense  be  debate 
at  all,  but  simply  a  forcible  stopping  of  the  legislative  machine.  Mr. 
Cannon  very  unwillingly  consented  to  pay  the  price  demanded,  but  he 
declared  with  emphasis  that  the  Senate  should  change  its  procedure,  or 
that  another  body,  "  backed  up  by  the  people,  will  compel  that  change, 
else  this  body,  close  to  the  people,  shall  become  a  mere  tender,  a  mere 
bender  of  the  pregnant  hinges  of  the  knee  to  submit  to  what  any  one 
member  of  another  body  may  demand  of  this  body  as  a  price  for 
legislation." 

Such  instances  of  the  effect  of  the  rules  of  the  Senate  are  by  no  means 
rare.  Perhaps  one  more  strikingly  illustrating  not  merely  the  tendency 
to  efface  the  House,  as  a  legislative  body  but  also  the  overthrow  of  the  rule 
of  the  majority  in  the  Senate  itself,  was  seen  two  years  ago.  The  River 
and  Harbor  Bill,  after  a  protracted  consideration  on  the  part  of  both 
Houses  and  of  their  committees,  and  after  passing  both  Houses  in  its 
substantial  form,  had  reached  its  last  stage  in  the  report  of  the  confer- 
ence committee  within  less  than  twenty  hours  of  the  final  adjournment 
of  the  Congress.  An  unsuccessful  attempt  had  been  made  to  attach  to 
the  bill,  to  which  it  bore  no  relation,  an  irrigation  scheme  involving  scores 
of  millions  of  dollars.  A  Senator  who  had  the  irrigation  project  much  at 
heart  determined  to  defeat  the  bill.  It  did  not  appeal  to  him  that  the 
measure  had  received  the  careful  attention  and  approval  of  both  Houses. 
The  rules  of  the  Senate  permitted  him,  under  the  guise  of  debate,  to 
consume  all  the  remaining  time  of  the  session.  He  took  the  floor  against 
the  measure.  To  talk  against  time  for  twenty  hours  demands  qualities 
which  few,  if  any,  of  the  greatest  parliamentary  orators  have  possessed. 
The  "debate"  which  followed  afforded  a  rare  display  of  physical  endu- 

1  From  The  Atlantic  Monthly,  Oct.,  1903.  Reproduced  with  the  consent  of  the 
Publisher  and  Author.  Copyright. 


136  AMERICAN  FEDERAL   GOVERNMENT 

ranee.  The  Senator  demonstrated  his  capacity  to  defeat  the  bill,  and,  to 
save  the  little  time  that  was  left  to  the  Senate  for  the  transaction  of  other 
urgent  public  business,  the  supporters  of  the  bill  surrendered  and  with- 
drew it  from  consideration. 

It  is  scarcely  a  conclusive  answer  to  indulge  in  the  time-honored 
epithet  and  say  that  the  measure  in  question  was  a  "River  and  Harbor 
steal."  Very  little  public  money  is  expended  with  greater  benefit  to  the 
people  of  the  country  at  large  than  the  money  which  is  spent  to  deepen 
the  rivers  and  improve  the  harbors  along  the  oceans  and  the  Great 
Lakes.  Some  portion  of  it  doubtless  is  mere  waste,  and  never  should  be 
appropriated  at  all.  A  large  proportion  of  that  waste  is  due  to  the  fact 
that  some  Senators,  like  the  one  to  whom  I  have  just  referred,  with  small 
states  behind  them,  but  with  the  same  power  as  Senators  from  the  great 
taxpaying  states,  are  careful  that  their  localities  shall  receive  their  share  of 
the  public  money,  and  their  ingenuity  expends  itself  in  finding  other 
objects  for  public  bounty  in  default  of  oceans  and  navigable  rivers.  I 
shall  subsequently  refer,  more  fully,  however,  to  the  unequal  character  of 
the  constitution  of  the  Senate.  I  am  only  referring  here  to  the  effect  of  the 
Senate  rules. 

The  House  of  Representatives  may  devote  its  time  to  the  perfecting  of  a 
great  measure  which  also  receives  the  approval  of  a  majority  of  the  Senate, 
and  then  the  measure  is  to  be  overthrown,  and  the  labors  of  the  House 
brought  to  naught  unless  consent  is  given  to  engraft  upon  it  the  pet 
scheme  of  some  individual  Senator  to  which  the  great  majority  of  both 
bodies  may  be  opposed.  As  much  can  be  said  for  the  freedom  of  debate 
which  exists  in  the  Senate  as  for  the  summary  procedure  which  often 
prevails  in  the  House,  under  which  a  vote  is  taken  upon  most  important 
measures  with  practically  no  debate  at  all.  But  unless  a  change  of  the 
Senate  rule  is  made,  as  applied  to  new  matters  sought  to  be  put  upon  bills 
which  have  received  in  substance  the  approval  of  both  Houses,  the  House 
of  Representatives  will  be  compelled  to  submit  to  the  demands  of  in- 
dividual Senators,  and  accept  the  principle  of  government  by  unani- 
mous consent  instead  of  by  majorities,  or  see  necessary  legislation  fail  of 
passage. 

From  the  time  of  the  adoption  of  the  Constitution  to  the  present  day 
there  have  been  frequent  protests  against  the  large  measure  of  power 
possessed  by  the  Senate,  especially  in  view  of  the  very  unequal  and  very 
unrepresentative  principle  upon  which  that  body  is  constituted,  but  its 
power  appears  to  have  fattened  upon  these  protests,  and  to  have  been,  on 
the  whole,  increasing.  If,  in  spite  of  the  constitution  of  the  Senate,  its 
power  has  been  employed  as  a  rule  for  the  general  good,  it  must  be  re- 
membered that  something  can  be  said  in  favor  of  the  most  unequal 
system  of  government  that  has  ever  existed.  The  purest  despotisms  and 
the  most  exclusive  oligarchies  have  frequently  been  responsive  to  popular 
opinion,  and  have  often  sheltered  order  and  sometimes  individual  free- 


THE   SENATE  137 

dom.  I  shall  take  for  granted,  however,  that  the  democratic  idea,  which 
our  nation  is  supposed  to  represent,  will  be  accepted  without  argument 
as  applied  to  North  America.  Caution  compels  me  to  say  "as  applied  to 
North  America,"  for  the  government  of  the  American  people  has  decreed 
that  the  "  consent-of-the-governed "  declaration  of  our  forefathers  was 
either  not  a  declaration  of  a  principle  at  all,  or  had  only  a  local  application 
and  did  not  possess  vitality  across  the  seas. 

The  great  and  growing  power  of  the  Senate  is  not  more  odious  on 
account  of  any  degeneracy  in  its  personnel.  The  lament  of  the  degeneracy 
of  the  present  as  compared  with  the  past  is  one  of  the  oldest  things  one 
can  find  in  history.  There  always  have  been,  and  there  probably  always 
will  be,  people  in  the  world  who  disparage  the  times  in  which  they  live,  — 
people  who,  as  Macaulay  said,  are  always  painting  a  golden  age  which 
never  existed  save  in  their  imaginations.  I  am  not  one  of  those  who 
think  that  the  talent  in  public  life  has  declined.  I  believe  it  is  true  that, 
on  the  whole,  even  the  national  Congress  for  the  last  ten  years  will  com- 
pare very  favorably  with  the  national  Congress  of  any  other  time  in  our 
history.  Some  exceptionally  great  figure  may  depart  from  one  House  or 
the  other  and  be  greatly  missed  for  a  time,  but  the  average  of  membership 
maintains  itself  very  fairly.  If  I  were  dealing  with  the  House  of  Repre- 
sentatives, I  could  cite  many  names  from  the  last  decade  of  its  history 
that  would  show  the  strength  of  its  membership,  —  statesmen  like  Reed 
and  Dingley  and  Wilson,  orators  like  Cockran  and  Dalzell  and  Bryan, 
debaters  like  Turner,  Cannon,  Hepburn,  and  Crisp.  But  I  am  dealing 
with  the  Senate.  It  contains  in  its  present  membership  one,  whose  name 
will  readily  occur  to  all,  who  will  pass  into  history  as  among  the  three  or 
four  greatest  statesmen  who  ever  had  a  place  in  that  body.  When  has 
it  had,  since  the  days  of  Douglas  certainly,  a  more  accomplished  debater 
than  Spooner,  or  a  more  pungent  and  brilliant  speaker  than  Vest;  or 
when  has  it  ever  had  more  tactful  and  discerning  leaders  than  Allison 
and  Aldrich  ?  And  the  list  of  striking  figures  might  easily  be  made  longer. 

The  striking  circumstance  in  connection  with  the  power  of  the  Senate 
is  that  it  holds  the  commanding  place  at  the  center  of  the  government.  It 
brings  to  mind  the  condition  of  things  in  Europe  under  the  feudal  system, 
where  the  nobles  had  the  position  between  the  king  and  the  people,  and 
gradually  encroached  upon  both  until  they  were  able  to  oppress  both,  — 
a  condition  which  continued  until  a  union  was  effected  between  the 
people  and  the  sovereign,  and  the  feudal  system  was  finally  overthrown. 
The  Senate  shares  the  powers  of  legislation  with  the  House  and  some 
of  the  most  important  executive  functions  with  the  President.  The 
latter  is  unable  to  appoint  a  collector  or  a  postmaster,  or  even  a  member 
of  his  own  official  household,  without  the  Senate's  consent.  Such  im- 
portant powers,  exercised  at  the  center  of  the  state,  would  naturally 
increase  by  encroachment  upon  both  extremes,  and  they  certainly  would 
not  diminish. 


138  AMERICAN  FEDERAL  GOVERNMENT 

The  course  of  the  Revolution  made  it  almost  inevitable  that  in  the 
Continental  Congress,  and  in  the  Congress  under  the  Articles  of  Con- 
federation, the  states  should  vote  as  a  unit  and  exercise  an  equal  authority ; 
but  when  the  time  came  to  formulate  the  Constitution,  the  most  enlight- 
ened of  our  statesmen  were  strongly  impressed  with  the  idea  that  there 
could  not  be  such  a  thing  as  a  permanent  free  government  established 
upon  so  unequal  a  principle.  The  question  of  the  relative  power  of  the 
large  and  small  states  in  the  new  government  became  a  pressing  one. 
That  was  the  rock  upon  which  the  Convention  was  more  than  once  very 
nearly  destroyed.  In  the  long  contest  which  ensued  it  must  be  admitted 
that  the  representatives  of  the  small  states  played  the  better  game  and 
won  upon  almost  all  points.  Their  most  effective  resource  was  found 
in  the  ardent  desire  of  the  leading  statesmen  from  the  larger  states  to 
substitute  a  real  national  government  for  the  mere  shadow  of  a  govern- 
ment that  then  existed,  and  they  made  the  larger  states  pay  a  high  price 
to  obtain  it.  They  secured  an  equal  representation  in  the  Senate,  and 
they  exaggerated  the  powers  of  the  body  by  conferring  upon  it  a  great 
variety  of  important  functions. 

The  large  states  made  a  determined  stand  upon  the  question  of  taxa- 
tion. They  insisted  that  the  people  and  not  the  states  paid  the  taxes,  and 
that,  as  the  larger  states  would  yield  more  taxes  than  the  smaller  states, 
the  representatives  of  the  people,  chosen  substantially  upon  the  basis  of 
population,  should  have  a  peculiar  control  over  revenue  bills.  Mr. 
Gerry  well  stated  the  prevailing  idea  of  the  time  with  reference  to  taxa- 
tion when  he  said,  ''Taxation  and  representation  are  strongly  associated 
in  the  minds  of  the  people,  and  they  will  not  agree  that  any  but  their 
immediate  representatives  shall  meddle  with  their  purses." 

Although  the  representatives  of  the  smaller  states  insisted  upon  an 
equal  power  even  over  revenue  bills,  they  did  not  lack  in  thrift  when  it 
came  to  guarding  themselves  against  liability  to  pay  an  equal  share  of  the 
expenses  of  the  government,  and  the  Constitution  accordingly  provided 
that  representation  and  direct  taxes  should  be  apportioned  among  the 
states  according  to  population. 

An  apparent  concession,  however,  was  finally  made  by  the  small  states 
with  regard  to  revenue  bills,  and  I  shall  refer  to  it  more  fully  hereafter, 
because  it  is  the  one  point  where  I  think  the  Senate,  not  satisfied  with 
the  great  powers  conferred  upon  it,  has  directly  encroached  upon  the 
prerogatives  of  the  House.  Having  secured  the  great  grant  of  power  in 
the  Constitution,  the  smaller  states  then  demanded  a  provision  that  that 
instrument  should  never  be  amended  so  as  to  take  away  the  equal  repre- 
sentation of  the  states  in  the  Senate  without  the  consent  of  every  state, 
—  something  which  obviously  it  would  be  impossible  to  obtain,  and 
which  was  equivalent  to  providing  that  the  Constitution,  in  that  particu- 
lar, should  never  be  amended  at  all. 

The  constitution  of  the  Senate  was  recognized,  at  the  time  of  its 


THE  SENATE  139 

establishment,  as  a  violation  of  the  democratic  principle,  but  a  violation 
which  the  peculiar  conditions  seemed  to  require,  and  I  think  it  was  never 
imagined  that  the  inequality  would  not  be  limited  to  that  which  existed, 
or  might  grow  out  of  the  states  at  first  forming  the  Union.  While  the 
Senate's  constitutional  powers  have  not  changed,  the  course  of  events 
has  greatly  intensified  their  undemocratic  character.  The  practical  in- 
equality originally  was  sufficiently  bad,  but,  by  the  admission  of  so  many 
new  and  small  states,  it  has  become  almost  intolerable.  The  original 
inequality  bore  heavily  upon  three  states,  yet  was  not  essentially  glaring 
with  reference  to  the  others;  but  to-day  it  is  possible  to  select  fifteen 
states  having  together  in  round  numbers  five  millions  of  people,  or  about 
two-thirds  of  the  population  of  the  state  of  New  York.  The  senatorial 
representatives  of  those  five  millions  would  lack  only  a  single  vote  of  the 
number  necessary  to  defeat  some  great  treaty  which  the  Senators  of  the 
other  seventy  millions  might  support.  States  having  less  than  one-sixth 
of  the  population  choose  a  majority  of  the  entire  Senate,  while  more  than 
five-sixths  of  the  people  of  the  country  are  represented  by  a  minority  in 
that  body.  The  state  of  Nevada,  under  the  last  census,  had  less  than 
forty-three  thousand  people.  If  New  York  were  permitted  to  have  the 
same  proportional  representation  in  the  Senate,  it  would  have  some  three 
hundred  and  fifty  Senators.  There  are  many  things  in  the  constitution 
of  the  Senate  which  are  admirable.  Such  a  conservative  body  is  to-day 
of  vital  importance.  The  length  of  the  term,  the  different  method  of 
choice  from  that  of  the  Representatives,  and  the  very  gradual  change  in 
membership,  are  highly  valuable  features.  But  none  of  its  good  features 
grows  out  of  the  great  inequality  of  its  constitution,  giving  one  man  in  one 
section  of  the  country  the  power  of  a  hundred  equally  good  men  in 
another. 

This  exaggerated  inequality,  so  utterly  subversive  of  the  American 
dogma  of  government,  is  undoubtedly  the  great  fault  in  the  constitution 
of  the  Senate.  There  is  none  of  the  common  traditional  attributes  of 
aristocracy  that  enters  into  this  situation.  The  theory  of  government 
which  treats  sovereignty  as  a  mere  possession,  passing  from  father  to 
son  like  any  other  species  of  property,  at  least  has  something  human  in 
it.  But  even  the  human  element  disappears  entirely  when  a  capricious 
bestowal  of  power  is  made  upon  a  mere  incorporation.  If  the  owners  of 
land  and  other  property,  the  mercantile  interests,  and  the  workingmen 
are  treated  as  classes  and  permitted  to  choose  their  representatives  in 
the  governing  body,  there  is  at  least  a  representation  of  the  diversity  of 
interests  with  which  legislation  deals.  And  the  proposition  is  not  en- 
tirely lacking  in  force  that  individuals,  separated  from  property  or  class 
interests,  are  affected  in  much  the  same  way  by  legislation,  and  have  a 
substantial  identity  of  interests.  In  other  words,  that  the  touch  of  nature 
will  affect  legislators  when  they  pass  laws  concerning  life  and  liberty  to 
which  they  themselves  will  be  subject ;  and  that  they  are  representatives 


140  AMERICAN   FEDERAL   GOVERNMENT 

in  a  stronger  sense  than  if  they  exercised  a  mere  delegated  authority; 
but  that  when  property  and  class  rights  are  dealt  with,  the  rapacity  of  one 
class  should  be  held  in  check  by  the  rapacity  of  another,  and  that  there 
should  be  such  a  balance  in  the  assembly  that  those  broad  interests 
which  are  weak  in  mere  numbers  should  not  be  devoured  by  those  that 
are  strong.  But  what  conceivable  thing  is  there  in  the  state  of  Nevada, 
estimable  as  her  people  doubtless  are,  to  entitle  one  individual  there  to  a 
hundred  times  as  much  weight  in  governing  the  country  as  is  possessed 
by  a  man  residing  in  New  York  or  Pennsylvania  or  Illinois,  or  indeed  to 
a  particle  greater  weight?  On  any  rational  theory  of  government  such 
inequality  is  unthinkable,  unless,  indeed,  it  be  true  that  those  having  a 
particular  occupation  should  exercise  a  special  and  almost  potent  control 
in  governing  the  myriads  of  other  occupations. 

We  have  had  recent  illustrations  that  this  system  of  inequality  does  not 
merely  violate  our  ideals,  but  that  it  has  serious  practical  results.  Ten 
years  ago,  in  consequence  of  concessions  to  the  silver  mining  interests, 
the  country  had  reached  the  verge  of  the  precipice,  and  our  financial 
system  was  at  last  almost  at  the  point  of  falling  upon  the  silver  standard. 
Under  the  law  requiring  the  government  to  purchase  4,500,000  ounces 
of  silver  bullion  every  month,  gold  was  rapidly  leaving  the  treasury, 
while  its  vaults  were  groaning  under  the  great  mass  of  silver.  The 
spectacle  was  then  witnessed  of  Senators  from  states,  containing  mining 
camps  but  comparatively  few  people,  almost  holding  the  balance  of 
power,  and,  having  an  equal  voice  with  that  of  the  populous  commercial 
states  of  the  Union,  struggling  desperately  to  continue  the  fatal  policy  of 
the  government  purchase  of  silver.  It  was  only  by  the  inflexible  and 
heroic  conduct  of  the  President,  supported,  as  he  chanced  to  be,  by  the 
great  body  of  the  party  in  opposition  to  him,  that  the  most  vital  com- 
mercial interests  of  the  great  majority  of  the  people  and  the  financial 
honor  of  the  nation  as  well  were  not  sacrificed. 

Other  illustrations  might  be  given,  but  they  would  only  tend  to  prove 
what  is  axiomatic  —  that  the  Senators  from  the  small  states,  as  well  as  the 
Senators  from  the  large  states,  will,  as  a  rule,  vote  for  those  measures 
furthering  the  special  interests  of  the  states  they  represent.  They  would, 
I  think,  be  accused  of  betraying  their  trust  if  they  did  less. 

The  great  practical  encroachment  of  the  power  of  the  Senate  beyond 
its  fair  constitutional  limits  is  seen  in  connection  with  bills  relating  to 
taxation.  The  chief  concession  in  the  formation  of  the  Constitution  was 
that  by  which  the  large  states  were  given  at  least  the  appearance  of  a 
special  power  over  taxation  in  proportion  to  their  population  as  a  set-off 
against  the  great  proportional  powers  given  the  small  states  through 
their  equal  representation  in  the  Senate.  The  small  states,  however,  on 
the  basis  of  population,  would  possess  entire  equality  with  the  large 
states,  and  it  would  certainly  be  no  good  ground  for  complaint  that  they 
should  not  be  accorded  the  right  to  impose  taxes  for  other  people  to  pay. 


THE   SENATE  141 

This  compensating  power  is  found  in  that  clause  of  the  Constitution 
providing  that  all  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives,  reserving  to  the  Senate  the  right  to  propose  or  concur 
with  amendments  as  on  other  bills.  Unless  a  substantial  power  was  in- 
tended to  be  conferred  by  this  clause,  the  contemporary  construction  put 
upon  it  by  the  Federalist,  in  a  paper  written  either  by  Madison  or  Hamil- 
ton, was  strikingly  erroneous.  "Admitting,  however,"  says  the  author 
of  this  paper,  "that  they  should  all  be  insufficient  to  subdue  the  unjust 
policy  of  the  smaller  states,  or  their  predominating  influence  in  the 
councils  of  the  Senate,  a  constitutional  and  infallible  recourse  still  re- 
mains with  the  larger  states  by  which  they  will  be  able  at  all  times  to 
accomplish  their  just  purposes.  The  House  of  Representatives  can  not 
only  refuse,  but  they  alone  can  propose  the  supplies  requisite  for  the 
support  of  government.  They,  in  a  word,  hold  the  purse,  —  that  power- 
ful instrument  by  which  we  behold,  in  the  history  of  the  British  Consti- 
tution, an  infant  and  humble  representative  of  the  people  gradually 
enlarging  the  sphere  of  its  activity  and  importance,  and  finally  reducing, 
so  far  as  it  seems  to  have  wished,  all  the  overgrown  prerogatives  of  the 
other  branches  of  the  government.  This  power  of  the  purse  may,  in 
fact,  be  regarded  as  the  most  complete  and  effectual  weapon  with  which 
any  constitution  can  arm  the  immediate  representatives  of  the  people 
for  obtaining  a  redress  of  every  grievance,  and  for  carrying  into  effect 
every  just  and  salutary  measure." 

But  what  would  this  power  amount  to  if  the  imposition  of  a  tax  upon 
a  single  article  would  confer  upon  the  Senate  the  right  to  go  over  the 
whole  range  of  taxes  and  construct  any  sort  of  a  bill  it  desired?  By 
giving  such  an  interpretation  to  the  meaning  of  the  exception  the  great 
power  itself  is  practically  destroyed.  At  the  time  of  the  framing  of  the 
Constitution  there  was  no  such  thing  known  as  amendment  by  complete 
substitution,  and  the  fair  construction  of  that  clause,  having  reference 
to  the  conditions  surrounding  its  adoption,  is  that  if  the  House  should 
send  a  bill  to  the  Senate  imposing  a  tax  upon  an  article,  the  Senate  might 
amend  by  raising  or  diminishing  the  proposed  tax  as  it  saw  fit.  It  was 
such  an  abuse  of  the  right  of  amendment  as  to  destroy  the  power  to 
originate  taxation  laws,  when  the  Senate,  as  it  did  in  1872,  substituted 
for  a  House  bill  relating  to  a  tax  on  coffee  a  general  revision  of  the 
tariff.  The  Senate's  action  at  that  time  called  out  a  protest  from  Gar- 
field,  who  had  deeply  studied  this  subject,  and  who  contributed  to  it  one 
of  the  most  notable  efforts  of  his  career  in  Congress.  Garfield  held  that 
the  action  of  the  Senate  in  the  case  cited  was  an  abuse,  and  that  its  action 
should  be  confined  substantially  to  the  subjects  in  the  House  bill.  He 
declared  that  the  action  of  the  Senate  invaded  "a  right  which  can  not  be 
surrendered  without  inflicting  a  fatal  wound  upon  the  integrity  of  our 
whole  system  of  government."  No  hard  and  fast  rule  can  be  set  up  in 
such  a  case,  but  it  is  a  question  of  prerogative,  and  each  body  should 


142  AMERICAN  FEDERAL   GOVERNMENT 

respect  the  constitutional  prerogatives  of  the  other.  Surely  the  body 
representing  the  people  should  struggle  for  its  own. 

The  great  Senators  have  almost  uniformly  contended  for  a  broad  con- 
struction of  the  prerogative  of  the  House.  Webster  held  that  it  was 
purely  a  question  of  privilege,  and  that  the  decision  of  it  belonged  to  the 
House.  Ben  ton,  who  belonged  to  the  opposite  political  party,  in  the 
same  debate  declared  that  "in  all  cases  of  doubtful  jurisdiction  between 
the  Houses  my  rule  is  to  solve  the  doubt  in  favor  of  the  House,  which, 
by  the  Constitution,  is  charged  with  the  general  subject.  Taxation  and 
representation  go  together.  The  burdens  of  the  people  and  the  repre- 
sentation of  the  people  are  put  together.  An  important  and  full  repre- 
sentation of  the  people  is  in  the  House  of  Representatives."  Sumner, 
Wilson,  Seward,  and  Hoar  have  also  declared  in  the  Senate  for  a  broad 
construction  of  the  prerogative  of  the  House. 

It  has  been  said  that  the  Senate  will  construct  a  better  tariff  than  the 
House.  The  framers  of  the  Constitution,  and  especially  its  great  inter- 
preter, Hamilton,  did  not  foresee  in  its  full  force  the  influence  of  special 
great  interests  in  framing  tariff  laws.  It  is  for  the  benefit  of  those  inter- 
ests, sometimes  pressing  for  governmental  protection  and  sometimes  for 
governmental  indifference,  to  have  tariffs  constructed  by  a  few  men, 
responsible  practically  to  no  great  body  of  public  opinion,  as  many  of 
them  as  possible  with  small  constituencies,  so  that  after  having  pro- 
tected the  interests  of  those  they  particularly  represent,  they  might  be 
unattached  and  without  special  electoral  responsibility.  A  scrutiny  of 
the  recent  bills  relating  to  taxation  will  show  that  the  House  bills  have 
usually  been  drawn  upon  more  popular  lines.  Take  the  repeal  of  some 
of  the  war  revenue  taxes  two  years  ago,  when  the  House  of  Representa- 
tives sent  to  the  Senate  a  bill,  the  chief  feature  of  which  was  the  removal 
of  nearly  all  the  troublesome  and  vexatious  stamp  taxes  which  had  been 
imposed  upon  almost  all  the  instrumentalities  of  trade.  The  tax  upon 
bank  checks,  insurance  policies,  real  estate  conveyances,  and  similar 
taxes  of  a  wide  application  were  removed  by  the  House  bill.  The  Senate, 
under  the  guise  of  its  power  to  amend,  struck  out  all  after  the  enacting 
clause  of  the  House  bill,  and  substituted  a  measure  of  its  own.  The 
distinguishing  feature  of  the  Senate  bill  was  an  extension  of  the  amount 
of  the  reduction  of  the  tax  on  beer  and  tobacco  by  about  twelve  millions, 
and  to  enable  this  to  be  done,  it  retained  many  of  the  stamp  taxes  which 
the  House  bill  removed,  and  especially  the  stamp  tax  upon  checks.  The 
tax  upon  checks  was  a  direct  tax  upon  hundreds  of  thousands  of  people, 
and  was  not  of  sufficient  importance  to  any  individual,  vexatious  though 
it  might  be,  to  lead  him  to  make  any  special  effort  for  its  repeal.  On  the 
other  hand,  the  millions  which  were  remitted  upon  beer  went  to  a  very 
small  class  who  had  so  much  at  stake  as  to  warrant  an  extraordinary 
effort.  The  House  repeal  was  in  favor  of  the  great  number,  and  the 
Senate  repeal  was  in  favor  of  the  few. 


THE  SENATE  143 

It  does  not  require  a  close  study  of  the  tariff  laws  of  the  last  twenty 
years  to  lead  to  the  conclusion  that,  although  special  interests  have  fully 
as  much  consideration  shown  them  in  the  House  of  Representatives  as 
they  should  have,  yet  the  Senate  has  been  the  citadel  of  those  interests. 
The  representatives  are  reached  directly  by  the  people  who  pay  the  taxes 
and  can  be  visited  with  public  indignation,  while  the  Senators  in  some 
instances  at  least  are  for  all  practical  purposes  irresponsible  to  the 
taxpayer. 

The  question  primarily  is  not  one  of  wise  or  unwise  laws,  or  whether 
small  states  do  not  often  have  strong  Senators,  while  large  states  have 
weak  ones.  It  involves  a  principle  which  is  not  disregarded  even  in  a 
constitutional  monarchy  like  Germany.  It  involves  the  principle  of  one 
set  of  men  imposing  taxes  for  another  set  of  men  to  pay,  and  if  the  House 
of  Representatives  would  insist,  as  some  of  its  greatest  members  have 
advised,  upon  a  broad  and  fair  construction  of  its  prerogatives,  we  should 
be  upon  a  platform  more  consistent  with  the  principles  of  sound  govern- 
ment. We  should,  I  am  sure,  have  laws  of  taxation  formulated  upon 
more  popular  lines.  The  masses  would  suffer  less  for  the  benefit  of  the 
great  special  interests,  and  there  would  be  some  compensation  to  the 
large  states,  and  to  the  people  who  are  directly  represented,  for  the  ex- 
traordinary powers  conferred  upon  the  Senate. 

By  a  sort  of  attraction  of  gravitation  the  great  powers  of  the  Senate 
increase  by  drawing  other  powers  to  them,  and  this  species  of  expansion 
is  especially  seen  in  the  tendency  to  confer  special  official  functions  upon 
the  Senators  individually.  Take  the  negotiation  of  the  treaty  of  peace 
with  Spain  in  1898,  which  was,  in  effect,  a  treaty  of  war  rather  than  of 
peace,  and  which  embarked  us  upon  a  policy  nobody  contemplated 
when  we  entered  upon  the  war  for  the  liberation  of  Cuba.  Of  the  five 
commissioners  who  were  appointed  to  negotiate  that  treaty,  three  were 
Senators.  That  is  not  an  exceptional  instance,  but  it  is  becoming  the 
rule.  A  more  recent  illustration  is  found  in  the  appointment  of  the  com- 
mission, soon  to  meet,  to  decide  the  Alaskan  boundary  dispute,  a  tribunal 
which,  under  the  agreement,  was  to  be  composed  of  impartial  jurists  of 
repute.  Two  of  the  three  American  members  of  the  commission  were 
chosen  from  the  Senate.  We  may  concede  to  those  two  Senators  the  ut- 
most their  warmest  friends  could  claim  for  them,  and  yet  there  is  no 
danger  in  the  assertion  that  there  are  plenty  of  other  jurists  in  the  coun- 
try as  impartial  and  of  as  high  repute.  If  there  were  a  paucity  of  Ameri- 
can talent,  or  if  the  great  part  of  it  were  concentrated  in  the  Senate,  then 
it  might  be  desirable  to  fill  such  places,  which,  for  all  essential  purposes, 
are  offices,  from  the  membership  of  the  Senate.  But  there  is  certainly 
no  such  lack  of  talent  in  private  life  as  to  call  for  a  duplication  of  parts 
in  the  play,  or  for  imposing  on  Senators  important  public  functions  in 
addition  to  those  belonging  to  their  own  office.  Mr.  Hay  had  not  been 
conspicuous  as  a  public  man  before  the  first  election  of  Mr.  McKinley. 


144  AMERICAN  FEDERAL   GOVERNMENT 

The  public  career  of  Mr.  Richard  Olney  had  been  limited  to  a  term  in 
the  Massachusetts  legislature  before  he  rendered  his  notable  service  in 
the  Cabinet  of  President  Cleveland.  I  think  neither  Mr.  Gage  nor  Mr. 
Root  nor  yet  Mr.  Knox  had  ever  held  important  public  office  before  he 
entered  President  McKinley's  Cabinet.  Scores  of  instances  can  be 
found  where  men  of  little  or  no  experience  in  the  public  service  have 
been  selected  to  fill  the  most  important  offices,  and  have  infused  new 
strength  and  energy  into  the  government. 

In  a  government  which  is  a  republic  in  anything  but  name  the  offices 
should  be  as  widely  distributed  as  is  consistent  with  good  administra- 
tion, and  the  rich  red  blood  which  the  country  possesses  in  abundance 
should  course  through  the  channels  of  office.  Even  if  the  country  were 
so  poor  in  talent  as  to  make  it  desirable  to  appoint  Senators  to  such 
places,  even  if  there  were  no  impropriety  in  their  negotiating  treaties 
upon  which  they  were  to  pass  judgment  as  Senators,  such  appointments 
come  perilously  near  being  an  infraction  of  the  Constitution.  A  Senator 
is  disqualified  from  holding  any  other  office  under  the  United  States, 
and  if  it  is  not  a  most  important  office  of  government  to  determine  in  the 
first  instance  the  great  question  of  peace  and  war,  or  to  settle  a  disputed 
boundary  with  another  nation,  then  the  term  has  an  exceedingly  narrow 
meaning. 

The  expansion  of  the  power  of  the  Senate  in  an  undemocratic  as  well 
as  an  unconstitutional  direction  is  ajso  seen  in  the  growing  tendency  to 
pass  laws,  and  especially  taxation  laws,  by  treaty.  Treaties  are  high 
contracts  between  nations,  and  it  can  hardly  be  believed  that  it  was 
within  the  contemplation  of  the  framers  of  the  Constitution  so  elabor- 
ately to  construct  a  legislative  machine  and  at  the  same  time  to  throw 
the  whole  mechanism  out  of  gear  by  a  single  clause  regarding  treaties, 
providing  that  the  President  and  Senate  might  call  in  a  foreign  potentate 
and  might  make  laws  for  the  internal  government  of  the  United  States. 
Treaties  have  the  force  of  law,  but  they  should  obviously  be  within  the 
fair  scope  of  the  treaty-making  power.  At  any  rate,  it  would  scarcely  be 
reasonable  to  claim  that  they  set  aside  the  Constitution,  and  if  we  are  to 
regard  the  Senate  as  a  part  of  two  legislative  machines,  it  can  not,  as  a 
part  of  either,  do  the  things  prohibited  by  the  Constitution.  Under  that 
instrument  revenue  bills  must  originate  in  the  House.  How,  then,  can 
they  originate  by  treaty  ?  It  would,  indeed,  be  a  curious  spectacle,  that 
of  the  Senate,  composed  in  the  way  it  is,  sitting  behind  closed  doors, 
and  deciding  in  secret  what  taxes  the  American  people  are  to  pay. 

The  four  years'  term  of  the  presidency  is  too  short  for  a  struggle  with 
the  Senate,  and  its  part  in  executive  transactions  is  so  great  that  any 
such  struggle  would  expose  an  administration  to  failure.  The  period 
of  life  of  the  House  of  Representatives  is  still  shorter,  and  its  term  would 
be  likely  to  come  to  an  end  before  a  contest  between  the  two  Houses 
would  acquire  any  great  momentum.  The  custom  under  which  Repre- 


THE   SENATE  145 

sentatives  are  expected  to  secure  offices  for  their  constituents,  and  thus 
to  ask  for  senatorial  favors,  makes  a  contest  between  the  two  Houses 
less  apt  to  occur.  As  I  have  said,  an  amendment  to  the  Constitution 
depriving  states  of  their  equal  membership  in  the  Senate  is  not  within 
the  range  of  possibilities,  as  such  an  amendment  would  require  the 
unanimous  consent  of  all  the  states.  It  would  be  possible  to  pass  an 
amendment  in  the  ordinary  way,  reducing  the  powers  of  the  Senate, 
but  the  friction  of  the  amending  machinery  is  so  great  that  it  would  in- 
volve an  intense  and  long  continued  pressure  of  public  opinion  to  set  it 
in  motion.  The  only  practical  hope  of  even  a  partial  remedy  lies  in  the 
jealous  insistence  by  the  House  upon  its  constitutional  prerogatives.  If 
it  should  do  that,  it  would  be  more  likely  to  realize  the  advantage  of  its 
position  in  a  nation  imbued  with  the  democratic  idea.  The  doubtful 
powers  of  government  would  gravitate  toward  the  House,  our  laws  would 
become  more  popular  in  character,  and  would  respond  to  broad  and 
general  needs  in  the  community,  while  the  character  of  the  Senate  as  a 
conservative  body  would  be  unimpaired. 

But  things  have  drifted  long  enough.  Nothing  can  be  clearer  than 
that  in  the  long  lapse  of  time  institutions  of  government  may  be  cor- 
rupted and  become  vastly  different  from  their  original  character.  Venice 
began  her  national  career  as  a  republic  in  fact,  and  for  centuries  was 
governed  by  elected  rulers  responsible  to  a  popular  assembly,  but,  while 
maintaining  the  name  of  republic,  she  came  to  have,  in  the  Council  of 
Ten,  sitting  in  secret,  or,  as  it  might  be  called  to-day,  "in  executive 
session,"  as  despotic  and  cruel  an  oligarchy  as  ever  existed.  It  might 
be  said  that  we  have  the  restraints  of  a  written  Constitution,  and  a 
Supreme  Court  to  enforce  them,  but  already  we  have  heard  made,  not 
entirely  without  effect,  that  appeal  to  an  utterly  false  national  pride,  "Is 
not  the  American  government  able  to  do  anything  that  any  other  govern- 
ment can  do?"  as  if  that  which  has  been  accounted  our  glory,  as  if  the 
restrictions  in  favor  of  freedom  and  against  tyranny,  even  by  the  govern- 
ment itself,  were  a  defect  and  a  badge  of  weakness.  And  in  view  of  the 
tendency  of  recent  decisions,  how  long  may  we  expect  the  Supreme 
Court  to  remain  the  austere  guardian  of  the  Constitution  against  the 
encroachments  of  executive  or  congressional  power?  That  court  may 
not  always  be  composed  of  Marshalls  and  Storys  and  Harlans,  and  what 
will  become  of  the  limitations  of  the  Constitution  if  ever  the  high  aery, 
about  which  the  eagles  of  our  jurisprudence  once  hovered,  shall  be  held 
by  the  twittering  judicial  tomtit?  At  any  rate,  the  preservation  of  our 
institutions  in  their  purity  requires  that  each  branch  of  the  political  de- 
partment of  the  government  shall  be  the  guardian  of  its  own  powers,  and, 
without  encroaching  upon  any  other  branch,  shall  stand  firmly  for  its 
own  prerogatives.  Any  determined  conflict  will  be  settled,  not  by  mere 
popular  clamor,  but  by  public  opinion.  Popular  clamor  is  often  stirred 
up  by  an  ardent  cultivation  of  the  galleries,  and  the  sensation  of  yesterday 


146  AMERICAN  FEDERAL   GOVERNMENT 

is  thrust  aside  and  forgotten  for  the  sensation  of  to-day.  But  the  settled 
and  potent  public  opinion,  which  is  the  product  of  patient  discussion, 
and  of  the  persistent  education  of  the  people,  usually  leads  to  policies  in 
quite  an  opposite  direction.  When  that  shall  be  appealed  to  in  any  de- 
termined contest  between  the  two  Houses,  it  can  scarcely  be  doubted 
that  the  decision  will  be  in  favor  of  those  great  principles  of  popular 
government  which  underlie  the  American  Commonwealth. 


THE   OLIGARCHY   OF  THE   SENATE1 
By  A.  MAURICE  Low 

OVER  the  doors  of  the  Senate  of  the  United  States  might  well  be 
inscribed  the  motto,  "Do  ut  des"  for  it  expresses  the  principle  which 
governs  the  members  of  the  Senate,  especially  the  inner  circle  that 
really  controls  the  Upper  House  of  Congress,  that  is,  in  fact,  the  govern- 
ment of  the  United  States.  Bismarck  translated  this  maxim  and  used  it 
in  the  sense  of  "I  give  in  order  that  you  may  give;"  Mr.  Goschen  ren- 
dered it  into  English  as  "the  exchange  of  friendly  offices,  based  on  the 
•avowed  self-interest  of  the  parties."  Whether  the  Bismarckian  or  the 
Goschen  version  be  accepted,  the  result  is  the  same. 

Basing  the  Federal  Constitution  on  the  British  system,  mutatis  mutan- 
dis, the  framers  of  the  Constitution  might  well  regard  the  House  as 
having  higher  authority  than  the  Senate,  because  it  had  the  sole  power 
to  originate  money  bills.  While  that  is  technically  correct,  the  power  of 
the  Senate  over  money  bills  is,  in  some  respects,  even  greater  than  that 
of  the  House,  since  it  is  able  to  amend  any  bill  which  the  House  may  send 
to  it  for  concurrent  action.  This  was  the  very  thing  feared  by  Mason, 
of  Virginia,  and  pointed  out  by  him;  and  the  right  of  the  Senate  to 
originate,  by  the  power  of  amendment,  bills  raising  revenue  and  making 
appropriations  has  been  confirmed  by  judicial  approval.  Technically, 
such  bills  have  not  originated,  or  rather  have  not  been  initiated,  in  the 
Senate.  But  when  the  Senate  takes,  for  example,  a  tariff  bill,  strikes 
out  all  except  the  enacting  clause,  writes  in  and  returns  to  the  House  a 
new  bill,  which  that  body  is  compelled  to  accept,  it  may  be  asked  whether 
that  particular  law  providing  for  the  collection  of  revenue  has  not  been 
created,  that  is  to  say,  originated,  by  the  Senate,  in  defiance  of  the  seventh 
section  of  the  first  article  of  the  Constitution,  despite  the  permission 
given  to  the  Senate  to  propose  amendments.  That  which  is  res  adjudi- 
cata  is  no  longer  open  to  question.  But  one  may  safely  hazard  the 
opinion  that  none  of  the  framers  of  the  Constitution  in  discussing  this 

The  North  American  Review,  February,  1902.     Reproduced  in  part,  by  permission. 
Copyright. 


THE   SENATE  147 

clause  of  that  instrument  anticipated  a  day  when  a  tariff  bill  framed  by 
the  House  would  be  treated  with  contemptuous  indifference  by  the 
Senate,  and  a  tariff  bill  framed  by  the  Senate  would  become  the  law  of 
the  land.  But  the  fact  is  greater  than  the  opinion.  By  the  power  of  the 
Senate  to  amend,  the  preponderating  control  supposed  to  have  been 
secured  to  the  House  by  endowing  it  with  the  sole  right  to  originate 
money  bills,  has  been  effaced.  "They,  in  a  word,  hold  the  purse," 
Hamilton  said  of  the  House ;  but  to-day  the  House  holds  the  purse  while 
the  Senate  dips  into  it. 

The  Senate  and  the  House,  therefore,  stand  on  an  equal  footing,  so  far 
as  the  control  of  the  public  purse  is  concerned,  the  House  having  lost 
the  ability  to  coerce  the  Senate  by  withholding  supplies  because  the 
Senate  by  "amendment"  can  defy  the  House.  But  the  Senate  always 
has  the  advantage  of  the  House  in  any  contest,  because  of  the  fact  that  it 
is  a  small  and  well-disciplined  body,  and  because  of  the  feeling  of  supe- 
riority which  belongs  to  the  Senatorial  estate.  Objections  have  been 
frequently  urged  against  the  common  use  of  the  term  "Upper  House" 
as  descriptive  of  the  Senate,  on  the  ground  that,  the  Senate  having 
coordinate  and  not  greater  privileges  than  the  House,  it  is  a  mistake  to 
give  it  an  appellation  that  would  signify  superior  authority.  Technically, 
it  is  true  that  there  is  no  distinction  in  the  delegated  powers,  and  yet  the 
Constitution  itself  makes  a  distinction  between  the  membership  of  the 
two  Houses,  requiring  that  the  Senator  shall  be  possessed  of  the  wisdom 
that  follows  from  greater  age,  and  the  more  thorough  comprehension 
of  the  spirit  of  the  country  proceeding  from  longer  citizenship,  if  of 
alien  birth. 

The  legislative  surrender  of  the  House  of  Representatives  to  the 
Senate  began  with  the  election  of  Mr.  Reed  to  the  Speakership  of  the 
Fifty-first  Congress.  Mr.  Reed  found  himself  confronted  by  a  state  of 
affairs  which  needed  a  drastic  remedy.  It  is  only  necessary  here  to 
refer  incidentally  to  the  practice  which  prevailed  in  the  House  of  Repre- 
sentatives before  Mr.  Reed's  election  to  the  Speakership,  as  the  conditions 
are  too  well  known  to  the  student  of  current  parliamentary  history  to 
require  more  than  passing  mention.  The  rules  of  the  House  were  too 
feeble  to  permit  the  transaction  of  business  unless  by  unanimous  consent 
or  a  test  of  endurance.  The  minority  always  had  the  majority  at  a 
disadvantage.  It  was  always  possible  for  the  minority  to  prevent  a 
vote  being  reached  simply  by  offering  dilatory  motions,  or  by  breaking 
a  quorum;  in  the  one  case  time  was  consumed  in  calling  the  roll,  in 
the  other  nothing  could  be  done  until  the  sergeant-at-arms  secured  the 
attendance  of  a  quorum,  and  it  often  required  several  weary  hours  for 
the  sergeant-at-arms  to  round  up  his  quarry.  Mr.  Reed,  when  he  came 
to  the  chair,  must  have  had  very  distinct,  and  very  unpleasant,  memories 
of  the  bitter  contest  over  the  Direct  Tax  Bill,  when  for  twenty-six  con- 
secutive hours  the  doors  of  the  chamber  were  kept  locked  because  a  call 


148  AMERICAN   FEDERAL   GOVERNMENT 

of  the  House  was  in  progress.  If  the  majority  were  to  be  held  respon- 
sible for  legislation,  %it  was  only  proper  that  they  should  have  power. 

Mr.  Reed  had  the  courage  and  the  ability  to  frame  a  code  of  rules  that 
made  it  possible  for  the  House  to  conduct  business  in  an  orderly  and 
expeditious  manner.  How  absolutely  necessary  his  code  was  is  shown 
from  the  fact  that  his  Democratic  successor  substantially  made  the  Reed 
rules  his  own;  and,  still  later,  when  the  swing  of  the  pendulum  once 
more  placed  the  House  in  control  of  the  Republicans,  the  Republican 
majority  saw  no  good  reason  why  any  change  should  be  made  in  the 
rules.  A  code  that  has  stood  the  test  of  time,  that  could  have  been  easily 
altered  but  was  not,  that  has  been  approved  by  political  opponents,  must 
possess  merit.  Mr.  Reed's  parliamentary  services  entitle  him  to  the 
highest  gratitude  of  the  country. 

Unfortunately,  Mr.  Reed  was  a  revolutionist;  he  accomplished  with 
one  bold  stroke  and  in  a  few  days  what,  under  other  circumstances, 
would  only  have  been  brought  about  very  gradually  and  after  long  years 
of  discussion.  The  danger  of  a  revolution  is  that  it  is  apt  to  run  to 
extremes ;  that  instead  of  moving  slowly  and  naturally  along  the  line  of 
least  resistance  it  takes  a  short  cut  to  its  objective  point  by  employing 
cataclysmic  methods. 

But  further,  not  only  did  Mr.  Reed  feel  it  his  duty  to  put  an  end  to 
interminable  and  frivolous  debate,  he  also  regarded  it  as  incumbent 
upon  him  to  check  the  rapidly  rising  tide  of  extravagant  expendi- 
ture. Those  were  the  days  when  the  taunt  of  "a  billion  dollar  Con- 
gress" made  men  turn  pale.  A  billion  dollar  budget  no  longer 
affrights  us. 

Two  important  things  followed  from  the  new  dispensation.  One  was 
that  even  vital  measures  were  disposed  of  without  proper  consideration. 
When  the  time  arrived  for  taking  a  vote  the  gavel  fell,  often  in  the  midst  of 
a  sentence,  and  all  debate  ceased.  The  other  was  that  members  of  the 
House  who  were  unable,  because  of  thte  Speaker's  rigid  ideas  of  economy, 
to  secure  appropriations  in  House  bills,  accomplished  their  purpose  by 
inducing  Senators  to  offer  for  them  bills  in  the  Senate  in  the  form  of 
amendments.  Senators  were  not  averse  to  doing  this,  as  it  pkced 
Representatives  under  obligations  to  them,  it  increased  their  prestige  in 
their  States,  and  it  added  still  more  to  the  growing  power  of  the  Senate. 
To  such  an  extent  has  the  practice  grown  that  it  is  now  recognized,  as  a 
matter  of  course,  that  the  Senate  will  "take  care"  of  routine  legislation 
to  which  the  House  is  opposed  or  on  which  it  is  not  safe  to  risk  the  chance 
of  possible  defeat  in  the  House.  Appropriations  for  the  construction  of  a 
revenue  cutter,  a  lighthouse  tender,  public  buildings,  and  other  things  were 
made  by  the  Senate  at  the  request  of  Representatives  who  knew  the 
impossibility  of  securing  favorable  action  by  the  House  if  the  bills 
originated  in  the  latter  body.  To  preserve  its  own  reputation  for  econ- 
omy, the  House  will  wink  at  the  extravagance  of  the  Senate.  The  Senate, 


THE   SENATE  149 

not  being  so  close  to  the  people  as  the  House,  is  less  frightened  by  the 
charge  of  extravagance. 

There  is  no  way  in  which  debate  in  the  Senate  can  be  abridged  or 
terminated  except  by  unanimous  consent.  The  state  of  affairs  which 
existed  in  the  House  prior  to  the  election  of  Mr.  Reed  to  the  Speakership 
exists  to-day  in  the  Senate.  The  majority  governs  only  by  the  will  of 
the  minority.  It  is  true  that  it  does  not  always  suit  the  purpose  of  the 
minority  to  exercise  its  power,  but  the  power  is  latent  and  not  surrendered. 
We  have  seen  tariff  bills  " amended"  by  the  Senate  so  that  their  framers 
did  not  recognize  them;  we  have  seen  a  single  Senator  compelling  a 
majority  to  come  to  terms  with  him  because  he  threatened  to  make  a 
speech  which  it  would  take  six  weeks  to  deliver;  we  have  seen  a  single 
Senator  defeat  a  bill  carrying  an  appropriation  of  some  $70,000,000 
—  a  bill  passed  by  the  House  and  having  a  majority  in  its  favor  in  the 
Senate  —  because  it  suited  his  purpose  so  to  do. 

It  is  because  business  in  the  Senate  can  only  proceed  by  "  unanimous 
consent "  that  the  principle  of  "  Do  ut  des  "  governs.  A  Senator  who  wants 
to  secure  an  appropriation  must  not  be  too  particular  about  some  other 
Senator's  little  raid  into  the  Treasury.  Even  great  party  measures  can 
be  brought  to  vote  only  by  agreement.  That  is  the  reason  why,  during 
the  course  of  a  session,  the  Congressional  Record  has  frequent  mention  of 
these  agreements ;  that  is  why  the  announcement  is  repeatedly  made  that 
a  vote  will  be  considered  as  ordered  on  a  certain  bill  on  a  definite  day  and 
hour,  "if  there  be  no  objection,"  and  no  objection  is  ever  made.  A  pact 
once  made  in  the  Senate  is  not  broken.  It  is  an  agreement  between 
gentlemen. 

It  has  been  shown  that  the  Senate  has  equal  power  with  the  House  over 
the  control  of  appropriations ;  that  it  can  create  a  tariff  bill  by  the  right 
of  amendment ;  that  it  can  prevent  the  enactment  of  any  bill  passed  by 
the  House ;  that  it  encourages  members  of  the  House  to  look  for  legisla- 
tion in  the  Senate  rather  than  in  the  House,  where  it  rightfully  belongs. 
One  has  never  heard  of  Senators  asking  favors  from  Representatives. 

To  say  that  the  House  has  been  reduced  to  a  negligible  quantity  in 
legislation  would  be  an  overstatement  of  the  case ;  it  is  no  exaggeration 
to  say  that  it  has  become  an  insignificant  factor.  In  further  support  of 
this  assertion  let  it  be  said  —  and  no  greater  practical  proof  of  its 
correctness  could  be  offered  —  that  the  correspondents  who  represent  in 
Washington  the  leading  newspapers  of  the  country  no  longer  think  it 
necessary  to  consult  members  of  the  House  regarding  legislation;  they 
confine  their  attention  almost  exclusively  to  the  Senate.  Time  was,  not 
many  years  ago,  when  important  questions  were  pending,  when  the 
opinions  of  leaders  in  the  House  were  as  eagerly  sought  by  these  corres- 
pondents as  were  the  opinions  of  leaders  in  the  Senate,  but  to-day  the 
mastery  of  the  Senate  is  so  clearly  recognized  that  it  would  be  a  waste 
of  time  to  seek  for  information  elsewhere.  When  the  important  "Platt 


150  AMERICAN  FEDERAL   GOVERNMENT 

amendment"  was  under  discussion  last  spring,  scarcely  a  word  was  said, 
either  in  the  newspapers  or  at  the  Capitol,  about  the  attitude  of  the 
House.  The  same  indifference  as  to  the  position  of  the  House  was  dis- 
played while  the  question  was  being  argued  whether  the  Philippines 
were  to  be  governed  by  Congress  or  were  for  the  time  being  to  be  left  in 
the  hands  of  the  President. 

Legislation,  therefore,  in  Washington  is  represented  by  the  Senate. 
Does  the  Senate  dominate  the  President? 

There  is  no  more  striking  example  of  the  encroachment  of  the  Senate 
than  the  way  in  which  the  Senate  deals  with  appointments  and  its  inter- 
ference in  the  conduct  of  foreign  relations.  Hamilton  dismissed  as  idle 
the  suggestion  that  the  President's  nominations  would  be  overruled,  or 
that  the  Senate  could  coerce  the  President  into  nominating  a  particular 
individual;  but  Hamilton  could  not  foresee  a  senatorial  oligarchy. 
Presidential  nominations  have  been  frequently  rejected;  no  President 
now  dares  to  make  a  nomination  unless  the  Senators  from  the  State  in 
which  the  nominee  resides  have  given  their  approval.  Fitness,  merit, 
talents  are  not  the  conclusive  consideration.  A  man  nominated  to  be  a 
Justice  of  the  Supreme  Court  of  the  United  States  was  rejected  because 
he  and  the  Senator  from  his  State,  although  of  the  same  political  faith, 
had  been  opposed  to  each  other;  the  nomination  of  a  man  seeking  a 
commission  as  a  paymaster  in  the  army  was  prevented  because  this  man 
had  written  certain  things  in  criticism  of  a  Senator.  No  nomination  is 
too  important  or  too  unimportant  to  escape  this  scrutiny.  Here  again 
the  principle  of  "Do  ut  des"  prevails  under  the  euphonious  guise  of 
" senatorial  courtesy."  A  nominee  personally  distasteful  to  a  Senator 
must  be  rejected,  because  the  time  may  come  when  some  other  Senator 
will  ask  a  similar  favor  at  the  hands  of  his  associates. 

This  is  mischievous  and,  at  times,  humiliating  to  the  President;  but 
it  is  seldom  dangerous.  The  interference  of  the  Senate  in  the  conduct  of 
foreign  relations  and  its  meddling  with  diplomatic  negotiations  are 
fraught  with  serious  consequences.  The  Constitution  gives  the  President 
the  power  "to  make  treaties,  provided  two- thirds  of  the  Senators  present 
concur,"  which  has  been  interpreted  by  some  expounders  of  the  Con- 
stitution to  mean  that  the  Senate  may  ratify  or  reject  a  treaty  as  it  sees 
fit,  but  it  has  not  power  to  amend.  This,  however,  is  not  the  judicial 
interpretation,  and  the  Supreme  Court  has  decided  (Haver  v.  Yaker, 
9  Wall.  35)  that  the  Senate  is  not  required  to  adopt  or  reject  a  treaty  as  a 
whole,  but  may  modify  or  amend  it.  But  the  Senate  has  assumed  an 
even  more  advanced  position.  It  now  chooses  to  regard  a  treaty  as  simply 
"a  project."  In  a  letter  which  Senator  Lodge  wrote  to  the  Boston 
Transcript,  December  29th,  1900,  in  which  he  defended  the  position  of 
the  Senate,  he  used  these  words:  "The  Senate  is  part  of  the  treaty- 
making  power,  and  treaties  sent  to  it  for  ratification  are  not  strictly 
treaties,  but  projects  for  treaties;  they  are  still  inchoate."  This  state- 


THE   SENATE  151 

ment,  Mr.  Lodge  observes,  is  a  " constitutional  truism."  It  is  in  the 
sense  that  Mr.  Lodge  is  simply  paraphrasing  the  Constitution  when  he 
declares  that  the  Senate  is  part  of  the  treaty-making  power,  and  he  is 
absolutely  correct  in  declaring  that  a  treaty  negotiated  by  the  President 
is  not  a  consummated  compact  until  ratified  by  the  Senate,  but  whether 
the  Senate  has  not  encroached  upon  executive  prerogatives  can  not  be 
so  lightly  answered. 

As  showing  the  assumption  of*  the  Senate,  notice  the  remarkable 
change  made  in  the  wording  of  a  recent  treaty.  Last  year  the  Senate 
ratified  a  treaty  with  Great  Britain  (The  Tenure  and  Disposition  of 
Real  and  Personal  Property),  providing  for  the  Disposition  of  real  estate 
and  giving  any  British  colony  the  right  to  adhere  to  the  convention  on 
notice  from  the  British  Ambassador  at  Washington  to  the  Secretary  of 
State;  and,  similarly,  any  possessions  of  the  United  States  beyond  the 
seas  were  to  be  included  in  the  compact  upon  notice  "being  given  by 
the  representative  of  the  United  States  at  London,  by  direction  of  the 
President."  The  Senate  amended  this  to  read  "by  direction  of  the 
treaty-making  power  of  the  United  States."  Thus,  by  the  addition  of  a 
few  words,  the  Senate  assumed  to  itself  the  right  to  conduct  foreign  re- 
lations, an  assumption  for  which  no  warrant  can  be  found  in  the 
Constitution. 

Presidents  who  were  more  jealous  of  their  prerogatives  than  Mr. 
McKinley  have  read  Congress  a  sharp  lecture  for  attempting  to  inter- 
fere in  foreign  affairs.  Jackson  vetoed  an  act l  because  "in  my  judgment 
inconsistent  with  the  division  of  powers  in  the  Constitution  of  the  United 
States,  as  it  is  obviously  founded  on  the  assumption  that  an  act  of 
Congress  can  give  power  to  the  Executive  or  to  the  head  of  one  of  the 
Departments  to  negotiate  with  a  foreign  government.  .  .  .  The  Execu- 
tive has  competent  authority  to  negotiate  .  .  .  with  a  foreign  govern- 
ment —  an  authority  Congress  can  not  constitutionally  abridge  or 
increase."  Would  Jackson  have  permitted  the  Senate  to  amend  the 
Property  Treaty  as  McKinley  did  ?  Certainly  not,  as  we  may  infer  from 
the  stinging  language  used  in  the  memorable  "Protest"  of  April  i5th, 
1834,  in  which  he  said: 

"The  resolution  of  the  Senate  presupposes  a  right  in  that  body  to  interfere 
with  this  exercise  of  Executive  power.  If  the  principle  be  once  admitted  .  .  . 
the  constitutional  independence  of  the  Executive  Department  would  be  as 
effectually  destroyed  and  its  powers  as  effectually  transferred  to  the  Senate  as 
if  that  end  had  been  accomplished  by  an  amendment  to  the  Constitution." 

Grant  was  equally  jealous  that  the  line  of  demarcation  between  the 
legislative  and  the  executive  should  not  be  overstepped.  In  returning 

1  An  "  act  to  authorize  the  Secretary  of  the  Treasury  to  compromise  the  claims 
allowed  by  the  commissioners  under  the  treaty  with  the  King  of  the  Two  Sicilies,  con- 
cluded Oct.  14,  1832." 


152  AMERICAN  FEDERAL   GOVERNMENT 

to  the  House  of  Representatives  a  "  joint  resolution  relating  to  congratu- 
lations from  the  Argentine  Republic,"  which  directed  the  Secretary  of 
State  to  acknowledge  a  dispatch  of  congratulation,  Grant  said: 

"I  cannot  escape  the  conviction  that  their  adoption  has  inadvertently  in- 
volved the  exercise  of  a  power  which  infringes  upon  the  constitutional  rights 
of  the  Executive.  .  .  .  The  Constitution  of  the  United  States,  following  the 
established  usages  of  nations,  has  indicated  the  President  as  the  agent  to 
represent  the  national  sovereignty  in  its  intercourse  with  foreign  powers  and 
in  all  official  communications  from  them." 

After  quoting  from  the  act  establishing  the  Department  of  State, 
Grant  continued: 

"This  law,  which  remains  substantially  unchanged,  confirms  the  view  that 
the  whole  correspondence  of  the  government  with  and  from  foreign  states  is 
intrusted  to  the  President;  that  the  Secretary  of  State  conducts  such  corres- 
pondence exclusively  under  the  orders  and  instruction  of  the  President." 

Cleveland  had  no  scruples  about  making  Congress  understand  that  it 
must  not  interfere  with  the  conduct  of  foreign  affairs,  and  that  the  rec- 
ognition of  an  independent  state  was  an  executive  act  purely,  and  not 
one  with  which  the  legislative  branch  could  concern  itself. 

Having  advanced  the  doctrine  that  treaties  negotiated  by  the  President 
are  merely  "projects  for  treaties ;  they  are  still  inchoate,"  the  Senate  has 
now  still  further  encroached  on  the  Executive  by  claiming  to  know  the 
details  of  a  treaty  while  in  process  of  negotiation  and  before  the  treaty  is 
submitted  to  it  for  ratification.  Minos  must  be  admitted  to  the  secrets 
of  Jove.  That,  virtually,  is  what  the  Senate  compelled  President 
McKinley  and  Secretary  Hay  to  do  when  it  so  amended  the  Hay- 
Pauncefote  canal  treaty  as  to  make  its  acceptance  by  the  British  Govern- 
ment impossible.  Mr.  Hay,  instructed  by  the  President  to  reopen 
negotiations  in  the  endeavor  to  secure  the  assent  of  the  British  Govern- 
ment to  a  new  convention,  deemed  it  not  only  politic  but  absolutely 
indispensable  that  he  should  consult  with  leading  Senators;  that  he 
should  inform  them  of  the  lines  on  which  he  proposed  to  negotiate  the 
new  treaty,  and  ascertain  from  them  if  the  suggested  stipulations  met 
with  their  approval.  This  he  did  by  the  direct  instruction  of  President 
McKinley ;  not  only  did  he  advise  with  Senators  but  also  with  the  Vice- 
President,  who  is  not  a  member  of  the  Senate  and  can  not  vote  on  a 
treaty. 

That  "perfect  secrecy  and  immediate  dispatch"  which  Jay  held  to  be 
"sometimes  requisite"  are  impossible  if  the  Senate  must  be  consulted 
in  advance  of  negotiations.  Jay,  who  was  wise  enough  to  see  that  there 
were  persons  "who  would  rely  on  the  secrecy  of  the  President,  but  who 
would  not  confide  in  that  of  the  Senate,"  thought  that  the  constitutional 
convention  had  done  well  in  providing  "  that  although  the  President  must, 


THE   SENATE  153 

in  forming  them  [treaties],  act  by  the  advice  and  consent  of  the  Senate, 
yet  he  will  be  able  to  manage  the  business  of  intelligence  in  such  a 
manner  as  prudence  may  suggest."  This  is  antiquated  doctrine.  The 
modern  doctrine  makes  the  President  merely  the  agent  of  the  Senate  in 
framing  a  treaty. 

"The  State  Department  in  its  negotiations  with  foreign  governments 
has  one  hand  tied  behind  its  back  and  a  ball  and  chain  about  its  leg," 
was  the  remark  made  to  the  writer  by  a  man  who  has  had  a  long  experi- 
ence in  American  diplomacy.  Jay  voiced  the  fear  entertained  at  the  time 
of  the  adoption  of  the  Constitution  "that  two-thirds  [of  the  Senate]  will 
oppress  the  remaining  third,"  but  to-day  it  is  always  the  one-third  that 
has  the  power  to  oppress  the  remaining  two-thirds  and  the  Executive  as 
well.  A  treaty  is  always  sure  to  meet  with  political  opposition,  the 
opposition,  that  is,  of  the  party  antagonistic  to  the  President ;  or  opposi- 
tion originating  in  prejudice,  self-interest,  or  ignorance.  As  instances  may 
be  cited  the  defeat  of  the  Olney-Pauncefote  general  treaty  of  arbitration 
(the  defeat  of  which  was  caused  by  dislike  of  Mr.  Cleveland  and  Mr. 
Olney,  and  by  the  general  prejudice  then  existing  against  the  negotiation 
of  a  treaty  of  that  character  with  England) ;  the  failure  to  act  affirmatively 
on  the  French  reciprocity  treaty,  because  it  was  believed  it  might  injure 
certain  manufacturing  interests ;  the  amendments  to  the  Hay-Pauncefote 
canal  treaty,  inserted  because  certain  similar  amendments  were  found  in 
the  convention  on  which  the  new  treaty  was  based,  which  were  perfectly 
proper  in  the  one  and  had  no  place  in  the  other;  and  also  because  certain 
Senators  were  honest  enough  to  say  that  they  feared  the  construction  of 
the  canal  would  seriously  injure  the  transcontinental  railroads.  Every 
treaty  will  meet  with  opposition  from  one  or  all  of  these  sources,  which 
explains  the  extreme  difficulty  of  securing  the  ratification  of  a  treaty  in 
these  days,  and  why  it  is  so  much  easier  for  the  one-third  to  prevent 
ratification  than  it  is  for  the  two-thirds  to  secure  it.  Lest  it  be  said  that 
this  is  a  criticism  of  the  Constitution,  it  may  be  frankly  answered  that  it 
is  nothing  of  the  kind;  but  it  is  a  criticism  of  the  assumption  of  the 
Senate,  and  it  justifies  the  statement  that  the  State  Department  is  always 
hampered  by  the  ball  and  chain  of  the  Senate. 

The  desire  of  the  Senate  to  leave  its  impress  upon  all  treaties  is  shown 
by  trivial  and  absurd  amendments,  "the  customary  disfigurement  at  the 
hands  of  the  United  States  Senate,"  to  use  Mr.  Cleveland's  vigorous 
language  in  discussing  the  Venezuelan  settlement.  Illustrative  of  what 
amounts  almost  to  a  mania,  in  recent  years,  on  the  part  of  the  Senate  to 
amend  treaties,  is  the  convention  of  1896  with  Great  Britain  for  the 
settlement  of  claims  arising  out  of  the  unlawful  seizure  by  the  United 
States  of  British  vessels  in  Behring  Sea.  The  convention  as  negotiated 
and  signed  by  the  plenipotentiaries  of  the  contracting  powers  provided 
that  "the  commission  may  sit  at  San  Francisco,  California,  as  well  as 
Victoria,  provided  it  shall  determine  in  any  case  that  the  interests  of 


154  AMERICAN  FEDERAL   GOVERNMENT 

justice  so  require,  due  regard  being  had  to  the  necessary  expense  and 
to  all  other  considerations  involved."  The  Senate,  to  make  the  language 
conform  to  its  own  ideas,  changed  the  article  to  read:  "The  Committee 
shall  also  sit  in  San  Francisco,  California,  as  well  as  Victoria,  provided 
that  either  Commissioner  shall  so  request,  if  he  shall  be  of  the  opinion  that 
interests  of  justice  shall  so  require,  for  reasons  to  be  recorded  on  the 
minutes." 

In  1883,  a  treaty  was  submitted  to  the  Senate  extending  the  life  of  a 
previously  concluded  convention  with  France  for  the  adjustment  of 
claims  between  the  two  countries.  Defining  the  practice  to  be  observed, 
the  negotiators  used  these  words :  "If  the  proceedings  of  the  Commission 
shall  be  interrupted  by  the  death  or  incapacity  of  any  one  of  the  Com- 
missioners," etc.,  which  the  Senate  amended  to  read:  "If  the  proceed- 
ings of  the  Commission  shall  be  interrupted  by  the  death,  incapacity, 
retirement,  or  cessation  of  the  functions  of  any  one  of  the  Commis- 
sioners," etc. 

An  examination  made  by  me  of  original  treaties  in  the  archives  of  the 
Department  of  State  shows  that,  in  the  early  days,  the  Senate  exercised 
the  right  of  amendment  very  sparingly  and  with  great  discretion,  but  of 
recent  years,  especially  during  the  last  decade,  it  has  exerted  its  power 
with  the  greatest  freedom,  until  now  the  treaty  that  is  ratified  without 
amendment  is  the  exception. 

What  enables  the  oligarchs  of  the  Senate  to  exercise  their  dominant 
power,  to  reduce  the  House  to  a  legislative  nonentity  and  to  keep  the 
President  in  subjection,  is  the  peculiar  code  of  the  Senate,  the  unwritten 
code  which  is  more  powerful  than  the  printed  rules.  The  fear  expressed 
by  Hamilton,  that  a  few  of  the  members  of  the  House  by  long  experience 
and  a  mastery  of  public  affairs  would  dominate  their  associates,  finds  its 
realization  in  the  Senate.  An  imperium  in  imperio  exists  there.  Despite 
the  fact  that  all  Senators  are  free  and  equal,  that  one  man  may  be  able  to 
block  business,  and  that  "government  by  agreement"  eliminates  friction, 
all  real  authority  is  centered  in  a  few  hands;  at  the  present  time  not 
more  than  half  a  dozen  Senators  have  reached  censorian  dignity.  The 
Congressional  Directory  of  November  2;th,  1900,  a  recent  edition,  gave 
the  biographies  of  eighty-five  Senators,  there  being  five  vacancies  at  that 
time.  Of  the  total  number,  forty-eight  were  then  serving  their  first  term, 
nineteen  their  second,  six  their  third,  eight  their  fourth,  and  four  their 
fifth ;  but  even  these  figures  are  misleading,  as  some  of  the  men  credited 
with  two  terms  have  not  seen  six  years  of  service ;  they  were  appointed 
to  fill  vacancies  and  then  elected  for  a  full  term.  But  taking  the  figures 
as  they  stand,  nearly  eighty  per  cent  of  the  Senate  has  served  less  than 
twelve  years  and  twenty  per  cent  more. 

In  the  Senate  authority  comes  with  length  of  service.  A  new  Senator 
is  placed  at  the  foot  of  unimportant  committees,  no  matter  how  long  his 
experience  in  public  life  or  his  standing  in  the  House  of  Representatives 


THE   SENATE  155 

or  elsewhere  (Mr.  Carlisle  was  one  of  the  rare  exceptions),  and  he  can 
only  reach  a  chairmanship  of  a  leading  committee  by  the  retirement  of 
Senators  who  outrank  him.  The  system  is  so  automatic  that  it  is  almost 
military  in  its  operation.  No  matter  how  brilliant  the  attainments  of  a 
captain,  he  must  bow  to  the  superior  wisdom  of  a  colonel  or  a  general.  A 
Webster  entering  the  Senate  to-day  would  perforce  sit  at  the  foot  of  the 
table  and  find  it  futile  to  try  and  oppose  the  chairman;  and  a  Webster 
would  find  himself  on  a  committee  of  minor  importance,  while  men  his 
intellectual  inferiors  and  his  juniors  in  years,  but  his  seniors  in  service, 
would  be  members  of  great  committees.  By  this  method  power  always 
centers  in  the  hands  of  a  few  men,  the  half  dozen  or  so  Senators  who  are 
at  the  head  of  the  few  really  important  committees.  No  legislation  can 
be  enacted,  no  policy  can  be  put  into  execution,  unless  these  men  are  first 
consulted  and  give  their  consent.  They  are,  in  effect,  the  Senate  of  the 
United  States. 

At  the  beginning  of  this  article  was  used  one  of  Bismarck's  favorite 
maxims.  Perhaps  it  may  not  be  inappropriate  to  close  with  the  remark 
made  by  the  Iron  Chancellor  when  discussing  the  terms  of  peace  with 
France,  an  observation  that  the  Senate  might  remember  with  profit: 
'  (La  patrie  veut  etre  servie,  et  non  pas  dominee."  l 


SENATE  PROCEDURE.     OBSTRUCTION  ON  THE 
CURRENCY   BILL,    1908 2 

[The  procedure  of  the  Senate  has  been  characterized  by  its  flexibility  and  the 
absence  from  it  of  any  general  rules  limiting  debate.  According  to  the  traditions 
of  the  Senate  there  should  not  be  any  hindrance  to  free  and  full  debate  in  that 
chamber.  The  closure  or  previous  question  has  never  been  used  in  the  Senate, 
nor  has  a  limit  been  fixed  to  debate  by  a  special  vote.  In  every  respect  the  pro- 
cedure of  the  Senate  has  been  in  diametrical  opposition  to  that  in  the  other 
branch  of  the  federal  legislature.  Repeatedly  this  freedom  of  debate  has  been 
used  by  individual  Senators  for  the  purpose  of  blocking  legislation  to  which 
they  were  opposed,  especially  toward  the  end  of  a  short  session  which  expires  by 
limitation  on  the  4th  of  March.  Thus  Senator  Carter  defeated  the  River  and 
Harbor  Bill,  Senator  Quay  conducted  a  lengthy  filibuster  on  the  Statehood  Bill, 
and  Senator  Tillman  insisted  upon  an  appropriation  for  a  claim  in  favor  of  his 
state  which  had  been  repeatedly  disallowed.  On  May  30,  1908,  Senator  La 
Follette  assisted  by  several  other  Senators,  used  obstructive  tactics  against  the 
passage  of  the  conference  report  on  the  Currency  Bill.  Every  technicality  was 
utilized  for  the  purpose  of  consuming  time.  The  question  of  "no  quorum" 
was  raised  thirty-six  times  within  a  few  hours,  necessitating  the  calling  of  the 
roll  at  brief  intervals.  The  session,  beginning  at  noon  on  May  29,  lasted  on 

1  An  answer  to  the  above  article,  by  William  H.  Moody,  member  of  Congress,  now 
Justice  of  the  Supreme  Court  was  published  in  the  North  American  Review,  March, 
1902. 

2  Congr.  Record,  May  30. 


156  AMERICAN  FEDERAL   GOVERNMENT 

through  the  night  until  late  in  the  afternoon  of  the  following  day.  As  the 
official  term  of  Congress  would  not  have  come  to  an  end  for  nearly  a  year,  the 
process  of  obstruction  might  have  gone  on  indefinitely  had  not  an  entirely  new 
turn  been  given  to  Senate  procedure.  Between  midnight  and  6  o'clock  of 
May  30,  three  very  important  precedents  were  established  which  may  in  the 
future  materially  interfere  with  the  traditional  liberty  of  unlimited  discussion 
in  the  Senate.  The  precedents  may  be  summarized  as  follows:  First,  The 
vice-president  announced  that  it  was  within  the  providence  of  the  chair  to  count 
a  quorum  and  that  a  roll  call  would  not  be  ordered  if  a  quorum  was  actually 
present.  This  decision  gives  the  vice-president  practically  the  same  power 
with  respect  to  a  quorum  that  is  enjoyed  by  the  speaker  of  the  House. 
Second,  The  Senate  determined  that  the  question  of  "no  quorum"  could  not 
be  raised  if  a  previous  roll  call  had  disclosed  the  presence  of  a  quorum,  and  if 
no  business  had  intervened.  It  was  held  that  debate  was  not  such  intervening 
business.  Third,  A  rule  of  the  Senate  which  in  practice  has  always  lain  dormant 
was  invoked,  prohibiting  a  Senator  from  addressing  the  Senate  upon  any  ques- 
tion more  than  twice  in  any  one  day. 

The  great  importance  of  these  precedents  as  well  as  the  interest  of  the  pro- 
ceeding in  itself  warrant  a  study  of  the  occasion  upon  which  the  precedents  were 
applied.  The  manner  in  which  this  conference  report  on  the  Currency  Bill  was 
brought  about  will  be  illustrated  later.  See  page  210  et  seq.] 

THE  VICE-PRESIDENT.  Fifty  Senators  have  answered  to  their  names. 
A  quorum  of  the  Senate  is  present.  The  Senator  from  Texas  will  proceed. 

Mr.  LA  FOLLETTE.    I  rise  to  a  question  of  parliamentary  inquiry. 

The  VICE-PRESIDENT.  Does  the  Senator  from  Texas  yield  to  the 
Senator  from  Wisconsin  ? 

Mr.  CULBERSON.    I  prefer 

Mr.  LA  FOLLETTE.  It  is  not  necessary  for  the  Senator  from  Texas  to 
yield  to  the  Senator  from  Wisconsin  when  the  Senator  from  Wisconsin 
rises  to  a  parliamentary  inquiry. 

The  VICE-PRESIDENT.  The  Senator  from  Wisconsin  will  kindly  state 
his  parliamentary  inquiry. 

Mr.  LA  FOLLETTE.  It  is  this,  Mr.  President :  That  if  at  any  time  dur- 
ing the  daily  sessions  of  the  Senate  a  question  shall  be  raised  by  any 
Senator  — 

Mr.  NELSON.    Mr.  President,  I  rise  to  a  point  of  order. 

Mr.  LA  FOLLETTE  (continuing) .    As  to  the  presence  of  a  quorum  — 

Mr.  NELSON.    I  rise  to  a  point  of  order,  Mr.  President. 

Mr.  LA  FOLLETTE  (continuing) .  The  presiding  officer  shall  forthwith 
direct  — 

The  VICE-PRESIDENT.  The  Senator  from  Wisconsin  is  stating  a  point 
of  order. 

Mr.  NELSON.    I  rise  to  a  point  of  order,  Mr.  President. 

Mr.  LA  FOLLETTE.    I  decline  to  yield,  Mr.  President. 

The  VICE-PRESIDENT.  The  Senator  from  Wisconsin  will  state  his 
point  of  order. 


THE   SENATE  157 

Mr.  LA  FOLLETTE.  I  desire  to  bring  Rule  V  to  the  attention  of  the 
President  of  the  Senate.  Rule  V,  subdivision  2,  provides  — 

2.  If,  at  any  time  during  the  daily  sessions  of  the  Senate,  a  question  shall  be 
raised  by  any  Senator  as  to  the  presence  of  a  quorum,  the  presiding  officer  shall 
forthwith  direct  the  Secretary  to  call  the  roll  and  shall  announce  the  result,  and 
these  proceedings  shall  be  without  debate. 

I  have  been  a  member  of  this  Senate,  Mr.  President,  but  a  brief  time, 
but  I  have  on  numerous  occasions,  without  any  Senator  yielding  the 
floor,  noted  the  fact  that  the  attention  of  the  presiding  officer,  under 
subdivision  2  of  Rule  V,  had  been  called  to  the  fact  of  the  absence  of  a 
quorum,  and  that  thereupon,  without  the  consent  of  any  Senator,  either 
the  presence  of  a  quorum  was  demonstrated  or  its  absence  demonstrated 
by  the  calling  of  the  roll ;  and  I  call  the  attention  of  the  presiding  officer 
to  the  fact  that  no  quorum  is  present. 

Mr.  NELSON.    Mr.  President,  I  desire  to  make  a  point  of  order. 

The  VICE-PRESIDENT.    The  Senator  will  state  his  point  of  order. 

Mr.  NELSON.  Mr.  President,  a  parliamentary  inquiry  is  not  a  point  of 
order  under  our  procedure  in  the  Senate.  That  is  a  practice  that  has 
grown  up  in  the  other  House  of  Members  applying  to  the  Chair  and 
asking  to  make  a  parliamentary  inquiry.  Our  rules  know  nothing  of  the 
kind.  There  is  no  point  of  order  in  it.  I  make  the  point  of  order  that  the 
Chair  is  not  obliged  to  respond  to  any  parliamentary  inquiry. 

Mr.  ALDRICH.  I  make  the  further  point  of  order  that  in  order  to  make 
a  parliamentary  inquiry  a  Senator  must  be  in  possession  of  the  floor,  and 
that  he  can  not  take  the  floor  by  asking  to  make  a  parliamentary  inquiry 
and  then  make  any  motion. 

The  VICE-PRESIDENT.    The  Chair 

Mr.  LA  FOLLETTE.  If  I  may  be  permitted  a  suggestion,  Mr.  President, 
I  had  the  attention  of  the  presiding  officer  of  the  Senate.  I  brought  to 
his  attention  the  fact  that  there  was  no  quorum  present;  and  under 
subdivision  2  of  Rule  V  it  seems  to  me  that  there  is  but  one  proceeding 
open,  and  that  is  to  ascertain  by  a  roll  call,  under  the  direction  of  the 
presiding  officer  of  the  Senate,  as  to  whether  or  not  there  is  a  quorum 
present. 

Mr.  GALLINGER.    Regular  order,  Mr.  President. 

The  VICE-PRESIDENT.  The  Chair  is  of  opinion  that  the  Senator  from 
Texas  [Mr.  Culberson]  had  the  floor,  and  that  he  declined  to  yield  to 
the  Senator  from  Wisconsin  [Mr.  La  Follette].  The  Chair,  therefore, 
sustains  the  point  of  order. 

Mr.  LA  FOLLETTE.  I  am  very  reluctant  to  have  to  appeal  from  that 
decision. 

The  VICE-PRESIDENT.  The  Senator  from  Wisconsin  appeals  from 
the  decision  of  the  Chair.  The  question  is,  Shall  the  decision  of  the 
Chair  stand  as  the  judgment  of  the  Senate? 


158  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  LA  FOLLETTE.  I  suppose  I  am  entitled  to  a  hearing  upon  that 
appeal.  I  do  not  propose  to  trust  to  myself  in  discussing  that  question. 
I  simply  propose  to  read  into  the  RECORD  of  this  Senate  the  rules  of  the 
Senate,  and  to  take  the  ruling  of  the  Senate  upon  that  proposition. 

Mr.  GALLINGER.    We  are  ready  to  give  it. 

Mr.  LA  FOLLETTE.  Having  obtained  the  floor,  I  called  the.  attention 
of  the  Presiding  Officer  of  this  body  to  the  fact  that  no  quorum  was 
present.  Under  Rule  V,  subdivision  2, 1  find  the  following : 

2.  If,  at  any  time  during  the  daily  sessions  of  the  Senate,  a  question  shall  be 
raised  by  any  Senator  as  to  the  presence  of  a  quorum,  the  Presiding  Officer  shall 
forthwith  direct  the  Secretary  to  call  the  roll. 

Mr.  President,  I  submit  that  the  proceedings  of  this  Senate  and  the 
integrity  of  its  proceedings  can  never  be  protected  unless  that  rule  be 
enforced,  and  enforced  rigidly.  You  are  about  to  make  a  precedent  here, 
which  may  return  to  plague  you  some  time,  because,  under  a  certain 
leadership,  you  have  set  your  faces  to  enact  certain  legislation.  I  submit 
to  you  that  you  may  go  to  that  extent  that  you  will  find  yourselves 
embarrassed  greatly  in  the  future.  Is  it  possible  that  important  pro- 
ceedings in  the  Senate,  if  one  man  can  get  the  floor,  may  be  conducted 
here  for  an  unlimited  period  of  time  in  the  presence  of  the  Presiding 
Officer  and  one  single  Senator,  he  declining  to  yield  the  floor  ?  It  might 
be  possible  for  him  to  incorporate  into  the  proceedings  of  this  Senate  the 
most  outrageous  matters,  because  there  is  an  organization  here  that 
resists  whenever  an  effort  is  made  upon  this  floor  for  the  great  body  of  the 
people  of  this  country.  Let  me  say  to  you  Senators  who  are  yet  free, 
that  you  may  go  to  such  an  extent  as  to  completely  commit  yourselves 
for  the  future. 

Now,  I  want  to  read  the  balance  of  that  rule  to  this  body: 

The  Presiding  Officer  shall  forthwith— 

I  am  reading  from  Rule  V,  subdivision  2  — 

If,  at  any  time  during  the  daily  sessions  of  the  Senate,  a  question  shall  be 
raised  by  any  Senator  — 

I  will  undertake  to  say,  Mr.  President,  that  a  hundred  times  in  the 
two  years  that  I  have  been  a  member  of  this  body  I  have  seen  Senators 
rise  on  this  floor,  call  upon  the  presiding  officer,  and,  without  any  assent 
upon  the  part  of  the  Senator  who  had  the  floor,  raise  the  question  that 
no  quorum  was  present.  I  will  undertake  to  say  that  an  examination  of 
the  records  of  this  Senate  will  show  that  that  has  occurred  during  the 
present  session  possibly  a  hundred  times. 

If,  at  any  time  during  the  daily  sessions  of  the  Senate,  a  question  shall  be 
raised  by  any  Senator  as  to  the  presence  of  a  quorum,  the  presiding  officer  shall 
forthwith  direct  the  Secretary  to  call  the  roll  and  shall  announce  the  result  — 


THE   SENATE  159 

Now,  I  submit  that  neither  the  presiding  officer  nor  this  body  ought  to 
let  the  decision  of  that  question  turn  upon  the  proposition  of  who 
raises  it  — 

And  these  proceedings  shall  be  without  debate. 
The  third  subdivision  of  Rule  V  is  as  follows: 

3.  Whenever  upon  such  roll  call  it  shall  be  ascertained  that  a  quorum  is  not 
present,  a  majority  of  the  Senators  present  may  direct  the  Sergeant-at-Arms  to 
request,  and,  when  necessary,  to  compel  the  attendance  of  the  absent  Senators, 
which  order  shall  be  determined  without  debate ;  and  pending  its  execution,  and 
until  a  quorum  shall  be  present  no  debate  nor  motion,  except  to  adjourn,  shall 
be  in  order. 

See,  Mr.  President  and  Senators,  how  carefully  the  maker  of  those 
rules  guarded  this  important  question  of  the  presence  of  a  quorum  during 
all  the  deliberations  of  this  body. 

Mr.  ALDRICH.  Mr.  President,  it  is  very  evident  that  a  question  of  this 
kind  can  not  be  raised  under  the  provisions  of  the  rule  unless  the  Senator 
raising  the  question  has  the  floor,  and  I  therefore  move  that  the  appeal 
taken  by  the  Senator  from  Wisconsin  be  laid  upon  the  table. 

Mr.  CULBERSON.    I  hope  the  Senator  will  not  make  that  motion  now. 

Mr.  ALDRICH.    I  think  I  must  make  it  now. 

Mr.  CULBERSON.    I  desire  to  make  a  statement. 

Mr.  ALDRICH.  I  withhold  the  motion  for  the  purpose  of  allowing 
the  Senator  to  make  a  statement. 

Mr.  CULBERSON.  Mr.  President,  in  my  judgment  the  decision  of  the 
Chair  is  erroneous.  I  believe  that  the  question  of  the  existence  of  a 
quorum  can  be  raised  at  any  time,  even  without  the  consent  of  the  Sena- 
tor who  may  at  the  time  hold  the  floor  in  debate.  The  notes  of  the 
stenographer  will  show  that,  being  asked  by  the  Chair  if  I  yielded  to  the 
Senator  from  Wisconsin,  I  stated  that  I  preferred  not  to;  and  that  is 
true.  I  preferred,  as  I  have  stated  once  or  twice,  to  go  on  with  the 
financial  statement  I  have  to  make  to  the  Senate  and  to  the  country  about 
the  extravagance  of  the  Administration  of  President  Roosevelt  and  be 
through  with  it ;  but  I  do  not  believe  —  and  it  has  not  been  my  purpose 
in  anything  I  have  said  or  anything  I  have  done  to  make  such  a  suggestion 
—  that  by  asking  not  to  be  interrupted  I  could  cut  off  any  Senator  from 
making  the  point  that  there  was  no  quorum. 

Mr.  ALDRICH.    I  ask  for  a  vote  on  my  motion. 

The  VICE-PRESIDENT.  The  Chair  will  state  that  Rule  XIX  provides 
that  — 

No  Senator  shall  interrupt  another  Senator  in  debate  without  his  consent. 

The  Chair  certainly  construed  the  language  of  the  Senator  from  Texas 
[Mr.  Culberson]  to  mean  that  he  did  not  yield  to  the  interruption  of 


160  AMERICAN  FEDERAL   GOVERNMENT 

the  Senator  from  Wisconsin  [Mr.  La  Follette  ].  The  Senator  from 
Rhode  Island  [Mr.  Aldrich]  moves  that  the  motion  be  laid  upon  the 
table.  All  in  favor  of  that  motion  will  say  "aye" 

Mr.  LA  FOLLETTE.  Mr.  President,  upon  that  question  I  demand  the 
yeas  and  nays. 

The  VICE-PRESIDENT.  The  Senator  from  Wisconsin  demands  the 
yeas  and  nays.  Is  the  demand  seconded  ?  [Putting  the  question.]  One- 
fifth  of  the  Senators  present  have  not  joined  in  the  demand. 

Mr.  LA  FOLLETTE.    I  ask  for  a  division. 

The  VICE-PRESIDENT.  A  division  is  demanded.  Those  in  favor  of 
the  motion  will  rise  and  stand  until  counted. 

The  question  being  put,  there  were,  on  a  division  —  ayes  32,  noes  14. 

Mr.  BACON.    Mr.  President,  I  desire  to  state 

Mr.  GORE.    Mr.  President 

Mr.  BACON.     I  have  the  floor,  I  think. 

The  VICE-PRESIDENT.  The  Senator  from  Georgia  [Mr.  Bacon]  is 
entitled  to  the  floor. 

Mr.  BACON.  As  I  did  not  have  the  opportunity  to  express  myself 
before  the  vote,  and  as  the  motion  to  lay  the  appeal  upon  the  table  did  not 
permit  of  an  expression,  I  desire  to  say  that  in  voting  not  to  lay  the  appeal 
on  the  table  I  was  not  unmindful  of  the  old  adage  that  "  hard  cases  make 
bad  law,"  and  I  was  unwilling  to  establish  a  precedent. 

Mr.  ALDRICH.    Mr.  President 

Mr.  BACON.  I  hope  the  Senator  will  not  interrupt  me ;  I  will  occupy 
but  a  minute.  I  just  want  to  say  that,  while  I  voted  that  way,  I  do  not 
wish  to  be  construed  as  being  in  sympathy  in  any  particular  with  any 
obstructive  proceedings  to-day  in  regard  to  the  pending  matter.  I  voted 
that  way  because  I  thought  that  was  the  correct  rule.  So  far  as  I  am 
concerned,  I  prefer  that  the  proceedings  of  the  Senate  should  go  on  in 
the  ordinary  and  usual  manner. 

Mr.  GORE.  Mr.  President,  I  submit  that  the  division  discloses  that 
there  is  not  the  presence  of  a  quorum. 

Mr.  KEAN.    Let  us  have  the  regular  order,  Mr.  President. 

The  VICE-PRESIDENT.  The  division  disclosed  the  existence  of  a 
quorum. 

Mr.  GORE.    It  takes  forty-seven  to  constitute  a  quorum. 

Mr.  KEAN.    Let  us  have  the  regular  order. 

The  VICE-PRESIDENT.  The  Chair  is  of  the  opinion  that  a  quorum  is 
present. 

Mr.  GORE.  I  should  like  to  say  that  there  are  ninety-two  members  of 
this  body.  Half  of  that  number  is  forty-six.  A  division  disclosed  the 
presence  of  forty-six.  As  I  understand,  it  takes  one  more  than  half  to 
constitute  a  quorum. 

The  VICE-PRESIDENT.  There  was  present  a  Senator  who  did  not  vote. 
A  quorum  is  present,  in  the  opinion  of  the  Chair. 


THE   SENATE  161 


Mr.  CULBERSON.    Mr.  President 


The  VICE-PRESIDENT.    The  Senator  from  Texas  is  recognized. 

Mr.  LA  FOLLETTE.  Mr.  President,  may  I  make  a  parliamentary 
inquiry  ? 

The  VICE-PRESIDENT.  The  Senator  from  Wisconsin  rises  to  a  parlia- 
mentary inquiry. 

Mr.  LA  FOLLETTE.  It  is  this :  Whether  the  decision  of  the  President 
of  the  Senate  at  this  time  establishes  the  precedent  in  this  body  of 
counting  a  quorum  when  the  vote  discloses  that  no  quorum  is  present. 

The  VICE-PRESIDENT.  The  Chair  will  read  from  the  decision  of  the 
President  pro  tempore  of  the  Senate  on  June  19,  1879.  The  Chair  under- 
stands that  the  occupant  of  the  chair  at  that  time  was  Allen  G.  Thurman, 
then  a  Senator  from  Ohio.  A  roll  call  was  ordered  and  had,  whereupon 
the  following  occurred: 

The  PRESIDENT  pro  tempore.  No  quorum  has  voted.  The  Chair  has  counted 
the  Senate.  There  is  a  quorum  present,  but  no  quorum  voting. 

Mr.  HOUSTON.  Mr.  President,  as  I  understand  the  construction  of  Rule  No. 
2,  by  the  Presiding  Officer,  whenever  it  is  disclosed  on  a  vote  that  there  is  no 
quorum  he  may  have  the  roll  called. 

The  PRESIDENT  pro  tempore.  The  Chair  has  usually  taken  the  fact  of  there 
being  no  quorum  voting  as  evidence  that  there  was  no  quorum  present;  but 
the  Chair  has  not  decided  that  it  is  not  possible  to  ascertain  otherwise  whether 
there  is  a  quorum.  The  Chair  does  not  think  the  fact  that  a  quorum  has  not 
voted  is  conclusive  evidence  that  a  quorum  is  not  present.  On  the  contrary, 
in  the  opinion  of  the  Chair,  he  has  a  right  to  count  the  Senate.  He  has  counted 
the  Senate  and  found  that  a  quorum  is  in  attendance,  but  a  quorum  has  not 
voted. 

In  the  present  instance  the  Chair  has  counted  the  Senate,  and  there  is  a 
quorum  present. 

Mr.  KEAN.    Regular  order,  Mr.  President. 

The  VICE-PRESIDENT.  The  Senator  from  Texas  [Mr.  Culberson] 
has  the  floor. 

Mr.  CULBERSON.  Mr.  President,  as  I  have  the  floor,  there  will  either 
have  to  be  order  on  the  floor,  or  I  will  call  for  a  quorum.  I  do  not  suppose 
there  will  be  any  question  about  that. 

The  VICE-PRESIDENT.    The  Senate  will  be  in  order. 

Mr.  Culberson  resumed  his  speech.  After  having  spoken  about  ten 
minutes. 

Mr.  HOPKINS.    Mr.  President 

Mr.  CULBERSON.    I  decline  to  yield,  Mr.  President. 

The  VICE-PRESIDENT.    The  Senator  from  Texas  declines  to  yield. 

Mr.  CULBERSON.  I  do  so  with  the  utmost  respect  to  the  Senator  from 
Illinois,  inasmuch  as  I  declined  to  yield  to  others.  I  want  to  get  through 
with  this  statement. 

The  VICE-PRESIDENT.    The  Senator  from  Texas  declines  to  yield. 

ii 


162  AMERICAN   FEDERAL   GOVERNMENT 

[Mr.  Culberson  resumed  and  concluded  his  speech.] 
The  VICE-PRESIDENT.    The  question  is  on  agreeing  to  the  report  of  the 
committee  of  conference. 

Mr.  LA  FOLLETTE.    What  is  the  question? 
Mr.  KEAN.    Let  us  have  the  question. 

******** 

Mr.  LA  FOLLETTE.  Mr.  President,  if  I  am  at  liberty  to  proceed,  I  am 
very  glad.  I  was  afraid  I  was  going  to  be  interrupted  for  some  time, 
while  the  Senate  sent  for  absentees.  I  did  not  understand  the  proceeding 
exactly,  and  I  do  not  like  to  be  off  the  floor  a  moment  longer  than  is 
absolutely  necessary  to  get  the  attendance  of  a  quorum.  And  now  may 
I  make  a  parliamentary  inquiry  before  starting  in?  Suppose  it  should 
develop  on  top  of  this  situation  that  there  is  not  a  quorum  present,  can 
I  raise  the  point  of  no  quorum? 

Mr.  HALE.  Clearly  the  Senator  can  not  raise  that  point  while  we  are 
proceeding  under  the  previous  call  to  secure  the  attendance  of  Senators 
by  the  Sergeant-at-Arms.  When  the  Sergeant-at-Arms  reports  and 
that  proceeding  is  ended,  then  if  there  is  no  quorum  another  call 
may  be  made,  but  it  can  not  be  made  until  those  proceedings  are 
completed. 

Mr.  LA  FOLLETTE.  Mr.  President,  I  want  to  remind  Senators  that 
you  are  making  precedents  now.  I  have  been  informed  that  there  is 
going  to  be  a  rule  sprung  on  me  before  I  get  through  that  a  Senator,  in  a 
single  legislative  day,  can  speak  only  twice  upon  a  question. 

Mr.  GALLINGER.    That  is  the  rule. 

Mr.  LA  FOLLETTE.  That  is  the  rule.  It  has  never  been  enforced  since 
I  have  been  a  member  of  this  body. 

Mr.  FORAKER.    The  rule  is  that  he  can  not  speak  more  than  twice  — 

The  PRESIDING  OFFICER.  Does  the  Senator  from  Wisconsin  yield  to 
the  Senator  from  Ohio  ? 

Mr.  LA  FOLLETTE.    Surely. 

Mr.  FORAKER.  As  I  understand  it,  a  Senator  can  not  speak  more  than 
twice  during  the  same  legislative  day  on  the  same  subject  except  by 
unanimous  consent. 

Mr.  LA  FOLLETTE.  Yes;  and  I  hardly  expect  to  obtain  unanimous 
consent,  if  I  should  yield  the  floor  at  any  time. 

Mr.  CULBERSON.    Mr.  President — — 

The  PRESIDING  OFFICER.  Does  the  Senator  from  Wisconsin  yield  to 
the  Senator  from  Texas? 

Mr.  LA  FOLLETTE.  I  am  not  sure  whether  I  have  a  right  to  the  floor 
or  not. 

Mr.  CULBERSON.  I  call  the  attention  of  the  Senator  from  Ohio  to  the 
exact  wording  of  the  rule. 

The  PRESIDING  OFFICER.  Does  the  Senator  from  Wisconsin 
yield? 


THE   SENATE  163 

Mr.  LA  FOLLETTE.  If  I  have  the  floor,  I  yield  to  this  interruption 
from  the  Senator  from  Texas. 

Mr.  CULBERSON.  I  simply  wanted  to  call  the  attention  of  the  Senator 
from  Ohio  to  the  exact  wording  of  the  rule.  It  is  that  — 

No  Senator  shall  speak  more  than  twice  upon  any  one  question  in  debate  on 
the  same  day  without  leave  of  the  Senate. 

Mr.  FORAKER.  I  was  in  error  in  saying  "by  unanimous  consent."  I 
understand  very  well,  of  course,  that  that  is  the  language  of  the  rule.  I 
want  to  suggest  to  the  Senator  that  when  he  gets  to  that  point  he  ask 
the  leave  of  the  Senate. 

Mr.  LA  FOLLETTE.  Mr.  President,  of  course  I  understand  perfectly 
well  that  the  Senate  would  deny  me  leave  to  proceed. 

Mr.  FORAKER.  Oh,  Mr.  President,  I  do  not  think  the  Senator  should 
assume  anything  of  the  kind  in  view  of  what  has  occurred  to-day.  I 
think  the  Senate  will  allow  the  Senator  anything  he  may  ask. 

Mr.  LA  FOLLETTE.  The  Senator  says  "in  view  of  what  occurred  to- 
day." I  do  not  think  that  I  was  given  any  indulgence  to-day  at  all.  I 
think  that  I  was  entirely  within  my  right.  And  I  do  not  expect  any 
indulgence  from  the  Senate.  I  never  have  had  any  since  I  have  been  a 
member  of  it. 

Mr.  FORAKER.  The  Senator  surely  was  entirely  within  his  right.  I 
was  not  making  any  complaint  of  the  Senator,  and  I  am  not  complaining 
of  anybody,  but  I  was  referring  to  the  vote  of  the  Senate  on  the  occasion 
the  Senator  has  in  mind. 

Mr.  OVERMAN.  Mr.  President,  I  rise  to  a  parliamentary  inquiry. 
Can  the  Senator  from  Wisconsin  proceed  until  the  Sergeant-at-Arms 
reports  ? 

Mr.  HOPKINS.    There  is  a  quorum  present. 

The  PRESIDING  OFFICER.  There  is  a  quorum  present,  and  the  Chair  is 
of  opinion  that  the  Senator  from  Wisconsin  has  the  floor  and  may  proceed. 

Mr.  OVERMAN.  The  question  I  raise  is  whether  it  has  been  established 
that  a  quorum  is  present. 

The  PRESIDING  OFFICER.     A  quorum  is  present. 

Mr.  OVERMAN.  And  at  any  time  can  the  point  of  a  quorum  be  raised 
if  there  is  no  quorum? 

Mr.  GALLINGER  and  others.    Regular  order ! 

The  PRESIDING  OFFICER.  The  Senator  from  Wisconsin  is  entitled  to 
the  floor. 

Mr.  LA  FOLLETTE.  I  should  like  to  know  Che  Chair's  ruling  upon  that 
point. 

The  PRESIDING  OFFICER.  The  Chair  is  of  opinion  that  the  Senator 
from  Wisconsin  has  the  floor  and  may  proceed. 

Mr.  LA  FOLLETTE.  That  was  not  the  parliamentary  inquiry.  I  would 
present  the  parliamentary  inquiry  to  the  Chair  just  presented  by  the 
Senator  from  North  Carolina. 


164  AMERICAN   FEDERAL   GOVERNMENT 

The  PRESIDING  OFFICER.  The  Chair  will  determine  that  question 
when  it  arises. 

Mr.  LA  FOLLETTE.  Then  I  will  raise  the  question  now  —  that  there 
is  not  any  quorum  present. 

The  PRESIDING  OFFICER.    The  Chair  is  of  opinion  that 

Mr.  LA  FOLLETTE.    It  is  not  a  question  of  the  opinion  of  the  Chair. 

The  PRESIDING  OFFICER.    There  is  a  quorum  present. 

Mr.  LA  FOLLETTE.  Mr.  President,  I  submit  that  when  the  question  is 
raised  it  is  not  for  the  Chair  to  state  that  there  is  a  quorum  present. 

The  PRESIDING  OFFICER.    The  Chair  will  read  clause  3  of  Rule  V: 

3.  Whenever  upon  such  roll  call  it  shall  be  ascertained  that  a  quorum  is  not 
present,  a  majority  of  the  Senators  present  may  direct  the  Sergeant-at-Arms 
to  request,  and,  when  necessary,  to  compel  the  attendance  of  the  absent  Senators, 
which  order  shall  be  determined  without  debate ;  and  pending  its  execution,  and 
until  a  quorum  shall  be  present,  no  debate  nor  motion,  except  to  adjourn, 
shall  be  in  order. 

This  implies,  of  course,  that  when  a  quorum  is  present  the  business  of 
the  Senate  shall  proceed.  The  Senator  from  Wisconsin  has  the  floor. 

Mr.  LA  FOLLETTE.  That  was  not  the  parliamentary  inquiry  presented 
by  the  Senator  from  North  Carolina.  If  it  was,  I  want  to  present  another, 
and  that  is  this :  It  having  developed  that  a  quorum  is  present  and  that 
the  regular  legislative  business  of  the  Senate  may  be  resumed,  I  ask,  if 
the  question  is  raised,  under  subdivision  2  of  Rule  V,  that  there  is  no 
quorum  present,  whether  it  does  not  then  become  necessary  to  ascertain 
by  a  roll  call  whether  there  is  a  quorum  present.  That  is  my  parliamen- 
tary inquiry. 

Mr.  TELLER.  Mr.  President,  I  understand  the  rule  to  be  that  when  a 
quorum  is  found  to  exist  and  it  is  announced  business  may  then  proceed, 
and  no  Senator  can  call  for  a  quorum  until  after  some  business,  at  least, 
has  been  transacted. 

Mr.  LA  FOLLETTE.    I  think  that  is  true,  Mr.  President. 

The  PRESIDING  OFFICER.  The  Chair  is  of  the  opinion  that  after  a 
quorum  is  announced  the  business  of  .the  Senate  must  proceed  until 
there  has  been  some  transaction  of  business. 

Mr.  LA  FOLLETTE.  Yes;  I  think  that  is  true,  and  I  was,  perhaps, 
anticipating  somewhat  in  raising  this  parliamentary  inquiry.  But  it 
came  up  at  the  suggestion  of  the  Senator  from  North  Carolina,  and  being 
a  rather  interesting  question  — 

Mr.  OVERMAN.    It  came  from  the  Senator  from  Maine. 

Mr.  LA  FOLLETTE.    That  is  true. 

Mr.  OVERMAN.  I  differed  with  him  on  the  question,  and  that  is  the 
reason  why  I  made  the  inquiry  of  the  Chair. 

******** 


THE   SENATE  165 

Mr.  ALDRICH.  Mr.  President,  I  rise  to  a  question  of  order.  The 
suggestion  of  the  Senator  from  Wisconsin  is  not  in  order.  We  have  had 
32  roll  calls  within  a  comparatively  short  time,  all  disclosing  the  presence 
of  a  quorum.  Manifestly  a  quorum  is  in  the  building.  If  repeated  sug- 
gestions of  the  want  of  a  quorum  can  be  made  without  intervening  busi- 
ness, the  whole  business  of  the  Senate  is  put  in  the  hands  of  one  man,  who 
can  insist  upon  continuous  calls  of  the  roll  upon  the  question  of  a  quorum. 
My  question  of  order  is  that,  without  the  intervention  of  business,  a 
quorum  having  been  disclosed  by  a  vote  or  by  a  call  of  the  roll,  no  fur- 
ther calls  are  in  order  until  some  business  has  intervened.  I  should  be 
glad  if  the  Vice-President  would  submit  that  question  of  order  to  the 
Senate. 

I  call  the  attention  of  the  Chair  to  a  decision  in  a  case,  which  is  on  all 
fours  with  this,  made  on  March  3,  1897,  when  this  precise  question  was 
raised  by  the  then  Senator  from  New  York,  Mr.  Hill,  who  sustained  it  by 
the  same  argument  which  I  am  now  calling  the  attention  of  the  Chair  to ; 
and  the  point  made  by  the  Senator  from  New  York  was  sustained.  It  is 
found  on  page  2737  of  volume  29,  part  3,  of  the  Record,  second  session, 
Fifty-fourth  Congress.  The  language  was  — 

MR.  HILL.  My  point  is,  that  the  presence  of  a  quorum  was  determined  by 
the  last  roll  call,  and  that  a  Senator  can  not  immediately  thereafter  suggest  the 
absence  of  a  quorum. 

The  PRESIDING  OFFICER.  Does  the  Senator  mean  to  embrace  the  feature 
that  no  business  has  intervened? 

Mr.  HILL.    Yes;  that  no  business  has  intervened. 

The  PRESIDING  OFFICER.    The  Chair  sustains  the  point  of  order. 

The  VICE-PRESIDENT.  Will  the  Senator  from  Rhode  Island  kindly 
restate  his  point  of  order. 

Mr.  ALDRICH.  It  is  that  the  roll  of  the  Senate  having  disclosed  the 
presence  of  a  quorum  and  no  business  having  intervened,  the  suggestion 
of  the  absence  of  a  quorum  is  not  in  order. 

The  VICE-PRESIDENT.  The  Chair  submits  to  the  Senate  the  question 
of  order  raised  by  the  Senator  from  Rhode  Island. 

Mr.  LA  FOLLETTE.  Mr.  President,  I  just  wish  to  suggest,  in  order  that 
it  may  appear  upon  the  RECORD  that  debate  has  intervened  since  the 
last  roll  call. 

Mr.  ALDRICH.    That  is  not  business. 

Mr.  LA  FOLLETTE.    I  just  wish  that  to  appear  upon  the  Record. 

Mr.  ALDRICH.    My  suggestion  was  that  debate  was  not  business. 

Mr.  LA  FOLLETTE.  And  I  want  to  remind  Senators  here  to-night, 
before  this  vote  is  taken,  that  every  precedent  you  establish  to-night  will 
be  brought  home  to  you  hereafter. 

Mr.  GALLINGER.  Mr.  President,  I  simply  desire  to  add  to  what 
has  been  said,  that  if  the  entire  business  of  the  Senate  can  be  put  in 


1 66  AMERICAN   FEDERAL   GOVERNMENT 

the  hands  of  one  man,  that  one  man  could  destroy  the  Government; 
he  could  prevent  appropriations  being  made  to  carry  on  the  govern- 
mental machinery,  and  it  is  absurd  to  suppose  that  it  was  ever  so 
intended. 

Mr.  CULBERSON.  Mr.  President,  I  understood  the  Senator  from 
Rhode  Island  to  read  from  subdivision  2  of  Rule  V. 

Mr.  ALDRICH.  I  did  not  read  any  rule.  I  make  the  point  upon  the 
ordinary  parliamentary  law,  which  governs  this  body  in  the  absence  of 
rules,  that  the  Senate  itself  has  decided  this  precise  point  upon,  I  think, 
two  or  three  occasions.  I  have  one  precedent  before  me,  which  is  exactly 
on  all  fours  with  the  present  situation. 

Mr.  CULBERSON.  The  Senator  then  read  from  a  decision  on  the 
question  ? 

Mr.  ALDRICH.  Yes ;  I  called  attention  to  a  case  which  appears  in  the 
Record. 

Mr.  CULBERSON.  Mr.  President,  that  refers  to  a  particular  proceed- 
ing of  the  Senate.  I  simply  want  to  read  the  rule,  which  provides : 

2.  If,  at  any  time  during  the  daily  sessions  of  the  Senate,  a  question  shall  be 
raised  by  any  Senator  as  to  the  presence  of  a  quorum,  the  Presiding  Officer 
shall  forthwith  direct  the  Secretary  to  call  the  roll  and  shall  announce  the 
result,  and  these  proceedings  shall  be  without  debate. 

It  not  only  provides  that  it  shall  be  done  at  any  time  during  the 
daily  sessions,  but  provides  that  the  proceedings  shall  be  had  without 
debate. 

The  VICE-PRESIDENT.  The  question  is  on  the  point  of  order  sub- 
mitted by  the  Senator  from  Rhode  Island  [Mr.  Aldrich]. 

[The  roll  call  was  concluded.] 

The  result  was  announced  —  yeas  35,  nays  5. 

The  VICE-PRESIDENT.    A  quorum  has  not  voted. 

Mr.  FORAKER.  Mr.  President,  I  ask  if  it  is  not  a  rule  of  the  Senate  that 
all  Senators  in  the  Chamber  when  the  roll  is  called  shall  vote  unless  they 
be  excused  by  the  Senate  ?  I  noticed  quite  a  number  of  Senators  in  the 
Chamber  who  were  in  the  Chamber  when  the  roll  was  called  who  did  not 
answer  in  any  way  to  their  names. 

The  VICE-PRESIDENT.  Rule  XII  covers  the  question  raised  by  the 
Senator  from  Ohio.  It  reads  in  part  as  follows : 

i.  When  the  yeas  and  nays  are  ordered,  the  names  of  Senators  shall  be  called 
alphabetically;  and  each  Senator  shall,  without  debate,  declare  his  assent  or 
dissent  to  the  question,  unless  excused  by  the  Senate. 

Mr.  HOPKINS.  I  ask  that  the  Secretary  call  the  names  of  the  Senators 
present  who  have  not  answered,  so  as  to  give  them  an  opportunity  to 
answer. 


THE   SENATE  167 

The  VICE-PRESIDENT.  The  Secretary  will  call  the  names  of  those 
Senators  who  have  not  voted. 

The  Secretary  called  the  name  of  Messrs.  Allison,  Bacon,  Bailey, 
Bankhead,  Beveridge,  Borah,  Bourne,  Bulkeley,  Burnham,  Clarke  of 
Arkansas,  Clay 

Mr.  CLAY  (when  his  name  was  called).  "Here."  I  have  already  an- 
nounced my  pair  with  the  senior  Senator  from  Massachusetts  [Mr. 
Lodge]. 

Mr.  HOPKINS.    The  Senator  votes  "present." 

The  Secretary  called  the  names  of  Messrs.  Crane,  Culberson 

Mr.  HOPKINS.  I  observe  the  Senator  from  Texas  [Mr.  Culberson]  is 
present,  and  I  should  like  to  have  a  record  of  that  fact  made.  The 
Senator  from  Texas  is  present  in  the  Chamber. 

Mr.  GALLINGER.    You  would  prefer  to  have  him  vote,  would  you  not? 

The  VICE-PRESIDENT.  For  the  information  of  the  Senate,  the  Chair 
will  read  section  2  of  Rule  XII.  It  is  as  follows : 

2.  When  a  Senator  declines  to  vote  on  call  of  his  name,  he  shall  be  required  to 
assign  his  reasons  therefor,  and  having  assigned  them,  the  Presiding  Officer 
shall  submit  the  question  to  the  Senate:  "Shall  the  Senator,  for  the  reasons 
assigned  by  him,  be  excused  from  voting?"  which  shall  be  decided  without 
debate;  and  these  proceedings  shall  be  had  after  the  roll  call  and  before  the 
result  is  announced ;  and  any  further  proceedings  in  reference  thereto  shall  be 
after  such  announcement. 

The  Secretary  will  continue  to  call  the  roll  of  absent  Senators. 

[The  Secretary  called 'the  remaining  names.  .  .  .  ] 

The  VICE-PRESIDENT.  Thirty-five  Senators  have  voted  in  the  affirma- 
tive and  eight  in  the  negative.  There  is  a  quorum  present,  the  roll  call 
having  disclosed  that  fact. 

******** 

Mr.  LA  FOLLETTE.  What  I  said  was,  that  I  had  seen  it  announced  in 
the  morning  papers  that  the  leaders  were  going  to  permit  us  to  enact  a 
Government  employees'  liability  bill;  and  when  I  said  "leaders"  I 
looked  at  the  Senator  from  Indiana,  and  he  nodded  his  head  [laughter] ; 
and  I  thought  he  had  been  informed. 

Mr.  BEVERIDGE.    Mr.  President 

Mr.  LA  FOLLETTE.  Wait  just  one  moment.  Mr.  President,  I  thought 
probably  the  Senator  had  been  encouraged  by  the  gentlemen  who  have 
been  opposing  his  strenuous  efforts  to  get  this  legislation.  I  refer  to  the 
older  leadership  of  the  Senate,  who  have  by  calling  for  the  reading  of  the 
Journal,  prevented  his  getting  the  floor  to  urge  this  legislation.  He  started 
early  enough,  so  that  he  should,  with  a  fair  chance,  have  gotten  through  a 
good  proposition  which  he  announced  that  he  would  offer  as  a  substitute 
for  this  makeshift  bill. 

But  we  have  had  the  reading  of  the  Journal,  as  well  as  the  reading  of 


1 68  AMERICAN  FEDERAL   GOVERNMENT 

messages  that  came  over  from  the  House.  In  this  way  a  good  deal  of 
time  has  been  used  here  to  prevent  action  upon  this  Government  em- 
ployees' bill,  which  was  being  urged  by  the  Senator  from  Indiana. 

I  do  hope  that  the  leaders  have  decided  to  let  us  have  that  legislation. 
That  is  the  only  way  we  can  get  it ;  at  least  that  was  the  way  the  morning 
papers  presented  it.  I  am  not  very  experienced  here ;  I  have  not  been  in 
this  body  very  long ;  but  it  has  rather  seemed  to  me  that,  some  way  or 
other,  unless  it  met  the  approval  of  a  very  limited  number  of  men  in  this 
body,  whatever  a  Senator  introduced  was  referred  to  some  committee 
and  pigeonholed.  In  that  way,  I  suppose,  it  falls  within  the  power  of  a 
very  limited  number  of  men,  who  are  the  leaders,  to  be  in  control  of  legis- 
lation. It  has  rather  seemed  to  me,  Mr.  President,  that  this  was  not 
exactly  the  sort  of  government  that  our  fathers  planned  for  us.  It  has 
always  been  my  idea  —  it  was  before  I  came  down  here,  you  know  — 
that  the  States  were  represented  here;  that  there  was  an  equality  of 
representation;  that  the  Senator  from  Missouri  and  the  Senator  from 
Rhode  Island  were  on  a  plane  of  equality  with  respect  to  legislation.  I 
had  had  only  a  limited  service  over  in  the  House.  It  was  not  then  just  as 
it  is  now,  and  all  the  while  I  have  labored  under  a  sort  of  impression 
that  if  any  Senator  came  here  with  an  absolutely  good  proposition;  if 
he  stuck  to  it  and  was  loyal  to  it  and  hammered  away  at  it,  it  would  get 
consideration  just  the  same  as  if  it  was  introduced  by  somebody  else. 
But  a  couple  of  years  here  brings  me  quite  a  bit  of  enlightenment  on  that 
subject. 

I  attended  a  caucus  at  the  beginning  of  this  Congress.  I  happened  to 
look  at  my  watch  when  we  went  into  that  caucus.  We  were  in  session 
three  minutes  and  a  half.  Do  you  know  what  happened?  Well,  I  will 
tell  you.  A  motion  was  made  that  somebody  preside.  Then  a  motion 
was  made  that  whoever  presided  should  appoint  a  committee  on  com- 
mittees; and  a  motion  was  then  made  that  we  adjourn.  [Laughter.] 
Nobody  said  anything  but  the  Senator  who  made  the  motion.  Then  and 
there  the  fate  of  all  the  legislation  of  this  session  was  decided. 

The  Senator  from  Indiana  [Mr.  Beveridge],  in  an  able  speech  which  he 
made  in  advocacy  of  the  creation  of  a  tariff  commission  here,  turned  a 
little  light  upon  the  legislative  methods  of  this  body.  In  speaking  of  the 
impossibility  of  the  Finance  Committee  taking  up  the  great  tariff  question 
and  giving  to  it  the  study  necessary  to  make  a  thorough  investigation  upon 
scientific  and  economic  lines,  establishing  a  just  basis  for  a  tariff,  one 
under  which  the  business  interests  of  the  country  can  thrive  and  rest  in 
security,  one  which  will  be  stable,  one  which  will  be  unassailable,  one 
which  will  be  honest  to  the  manufacturers  and  honest  as  well  to  the  con- 
sumers, the  Senator  pointed  out  the  facts  and  called  attention  to  the 
number  of  places  that  the  members  of  the  Committee  on  Finance  had 
upon  the  other  important  committees  of  this  body  and  to  the  tax  which 
that  made  upon  their  time  and  upon  their  service.  It  was  unanswerable ; 


THE  SENATE  169 

but  it  was  more  than  that.  I  want  to  carry  the  thing  a  step  further  than 
the  Senator  from  Indiana  did.  He  cited  the  fact  and  applied  it  to  this 
particular  piece  of  legislation ;  'but,  Mr.  President,  if  you  will  scan  the 
committees  of  this  Senate,  you  will  find  that  a  little  handful  of  men  are  in 
domination  and  control  of  the  great  legislative  committees  of  this  body 
and  that  they  are  a  very  limited  number. 

I  have  heard  this  talk  about  seniority  and  all  the  like  explanations,  but 
I  want  to  tell  you,  Senators,  that  this  is  a  representative  Government. 
California  and  Wisconsin  and  Maine  are  entitled  to  equal  representa- 
tion here;  and  the  hour  will  come  when  this  system  which  you  have 
inaugurated  to  lodge  the  power  of  legislation  in  the  hands  of  a  dozen  men 
in  this  body  can  no  longer  be  maintained ;  and  it  ought  not  to  be  main- 
tained. It  is  not  democratic;  it  is  not  republican;  it  is  not  right.  It 
places  upon  those  members  burdens  which  they  are  unable  to  carry,  if 
they  take  proper  care  of  the  great  interests  committed  to  those  committees. 
If  that  be  not  so,  then  you  may  as  well  dispense  with  two-thirds,  practi- 
cally, of  the  membership  of  this  body. 

******** 

Mr.  GORE.  Now,  Mr.  President,  I  submit  that  gentlemen  on  the 
other  side  have  not  only  changed  their  convictions  with  reference  to  this 
measure,  but  they  are,  as  I  understand,  changing,  if  not  the  rules,  at 
least  the  practices  and  customs  of  this  body.  A  suggestion  was  made 
during  the  early  hours  of  the  morning  that  there  was  no  quorum  present. 
That  suggestion  was  overruled  or  held  out  of  order.  An  appeal  was 
taken  to  the  Senate,  and  the  Chair  was  sustained.  When  I  reported 
here  this  morning,  not  altogether  upon  my  own  motion,  a  different  Sena- 
tor, to  my  surprise,  I  may  say,  was  holding  the  floor  and  entertaining 
the  Senate.  In  the  meantime  this  action  had  been  taken  and  this  business 
transacted  by  the  Senate  —  an  order,  sir,  that  when  this  measure  shall  • 
be  voted  upon  it  shall  be  by  the  yeas  and  nays. 

During  the  speech  of  the  Senator  from  Missouri  [Mr.  Stone]  I  made 
the  suggestion  of  no  quorum.  That  suggestion  was  held  to  be  out  of 
order  on  the  ground  that  no  intervening  business  had  transpired. 
Then,  sir,  I  appealed  from  the  decision  of  the  Chair,  and  the  dis- 
tinguished Senator  from  Rhode  Island  [Mr.  Aldrich],  with  an  ingenuity 
that  added  luster  to  his  renown,  interposed  with  the  statement  that  a 
suggestion  that  was  out  of  order  could  not  be  appealed  from. 

Mr.  President,  I  am  a  new  man  in  the  Senate,  but  I  shall  have  to 
change  my  decision  if  I  ever  appeal  from  a  suggestion  or  from  a  rul- 
ing of  the  Chair  that  is  made  in  my  favor.  It  will  be  only  those  rulings 
which  are  adverse  to  my  views  and  my  convictions  that  I  shall  chal- 
lenge, and  that  was  the  reason  why  I  appealed  from  the  decision  of  the 
Chair. 

I  make  these  observations  in  order  to  show,  Mr.  President,  the  revolu- 
tionary methods  which  are  being  employed  to  aid  in  the  passage  of  this 


170  AMERICAN  FEDERAL   GOVERNMENT 

measure  through  the  Senate.    The  majority  of  the  Senate  have  changed 
not  only  their  convictions,  but  changed  the  practices  of  a  century,  sir. 

It  has  been  the  pride  of  the  American  Senate,  and  I  may  say  of  the 
American  people,  that  there  was  at  least  one  forum  where  free  discussion 
forever  prevailed.  The  Senate  may  not  always  have  stood  as  high  in  the 
esteem  of  the  public  as  it  deserved  to  stand,  and  modesty  forbids  me  to 
say  that  since  my  accession  to  the  body  its  reputation  ought  to  be  en- 
hanced in  public  favor,  but,  sir,  it  has  been  the  pride  of  the  American 
people  that  free  discussion  prevailed  in  the  United  States  Senate.  There 
was  one  forum  where  the  truth  could  be  elicited,  where  the  merits  and 
demerits  of  every  measure  could  be  discussed  and  illuminated  without 
limitation  or  without  hindrance,  and  I  hope  the  day  will  never  come 
when  that  tradition  and  that  precedent  shall  be  permanently  abandoned. 

I  do  not  know  what  irresistible  power  is  impelling  the  passage  of  this 
measure  that  Senators  should  resort  to  what  seem  to  be  such  revolu- 
tionary tactics.  It  strikes  me  —  perhaps  born  of  inexperience  and 
perhaps  born  of  fear  —  that  this  proceeding  is  but  the  shadow  of  another 
scepter.  I  trust  the  time  will  never  come  when  a  measure  can  be  passed 
through  this  Senate  —  a  financial  measure,  a  tariff  measure,  or  any  other 
measure  of  public  concern  —  with  a  limitation  of  debate  to  one  hour, 
to  two  hours,  or  even  to  three  hours  upon  the  side.  I  hope  if  that  time 
ever  comes  there  will  be  another  branch  of  this  Government,  impelled 
by  a  regard  for  the  Constitution,  which  will  say  that  no  measure  can  pass 
that  body,  which  did  not  pass- this  body  under  constitutional  methods  and 
practices. 

To  illustrate,  if  a  public  buildings  bill  were  pending  in  the  Senate  and 
a  currency  measure  were  pending  in  the  House,  I  should  never  be  will- 
ing for  the  Senate  to  insist  that  unless  the  currency  measure  passed  the 
•House  the  public  buildings  measure  would  be  murdered  in  the  Senate. 
I  hope  it  will  never  come  to  that  pass,  and  I  am  sorry  that  the  parlia- 
mentary regulations  forbid  me  to  speak  with  even  greater  plainness. 

I  desire  to  ask  the  parliamentary  status  of  the  conference  report.  As 
I  understand,  no  amendment  can  be  offered  to  the  pending  report ;  not 
one  letter  can  be  stricken  out  or  added  to  it ;  it  must  be  accepted  as  a 
whole  or  it  must  be  rejected  as  a  whole.  Am  I  correct? 

The  VICE-PRESIDENT.  The  Senator  from  Oklahoma  is  correct.  The 
only  question  is  on  agreeing  to  the  report  of  the  committee  of  conference. 

Mr.  GORE.  I  desired  an  explicit  ruling  on  that  point  in  order  that  the 
American  people  who  are  not  experts  in  parliamentary  law  and  usage 
might  understand  why  the  minority  party  did  not  offer  salutary  amend- 
ments to  the  pending  report. 

******** 

Mr.  BACON.  I  was  endeavoring  to  state  that  several  things  had 
occurred  during  the  progress  of  the  debate  upon  this  question  which  I 
am  unwilling  should  pass  by  as  having  met  with  general  recognition, 


THE   SENATE  171 

through  acquiescence,  by  the  Senate,  because  of  the  fact  that  in  the 
Senate  a  precedent  is  a  matter  of  gravity  and  importance,  and  occasions 
may  arise  hereafter  where  these  questions  may  be  of  very  much  more 
vital  importance  than  they  have  been  while  the  pending  question  has  been 
under  discussion. 

Of  course,  Mr.  President,  I  recognize  the  fact  that,  in  the  heat  of  con- 
troversy, Senators,  as  well  as  others,  will  do  and  say  things  which  will 
be  conducive  to  the  particular  end  which  they  then  have  in  view,  which, 
from  a  more  conservative  standpoint  and  under  other  circumstances 
they  would  neither  say  nor  approve. 

One  precedent  was  made  last  night  to  which  I  wish  to  enter  my  dissent. 
That  precedent  was  made  by  a  vote  of  the  Senate.  It  was  to  the  effect 
that  after  a  roll  call  had  been  had  upon  the  suggestion  of  the  want  of  a 
quorum,  and  after  the  roll  call  had  disclosed  the  presence  of  a  quorum,  it 
was  out  of  order,  when  nothing  else  had  transpired  but  debate,  to  again 
suggest  the  absence  of  a  quorum  and  again  having  a  roll  call  for  the  pur- 
pose of  determining  whether  or  not  a  quorum  was  present.  In  other 
words,  the  Senate  determined,  by  a  vote,  that  a  continuance  of  debate 
after  a  roll  call  did  not  amount  to  the  intervention  of  other  business,  and 
that  no  business  having  intervened  —  debate  not  being  recognized  as 
business  —  regardless  of  the  time  which  had  elapsed,  or  regardless  of 
the  fact  that  there  were,  perhaps,  only  ten  Senators  present,  there  could 
be  no  suggestion  of  the  absence  of  a  quorum,  and  that  the  Senate  must 
proceed  with  the  ascertained  fact  that  there  had  been  a  quorum,  and 
without  power  to  inquire  whether  or  not  there  was  then  a  quorum. 

Mr.  President,  I  did  not  vote  upon  that  question  when  it  was  submitted 
to  the  Senate  for  this  simple  reason:  The  Senator  from  Rhode  Island 
[Mr.  Aldrich]  had  read  what  he  alleged  was  a  precedent  in  that  matter, 
and  had  read  from  the  Congressional  Record  a  ruling  which  had  been 
made  by  the  Chair  on  March  3,  1897,  which  the  Senator  from  Rhode 
Island  contended  established  that  proposition.  It  so  happened,  although 
the  fact  was  not  known,  I  think,  to  the  Senator  from  Rhode  Island  at 
the  time  that  he  cited  the  precedent,  that  I  was  the  Senator  temporarily 
occupying  the  chair  on  the  3d  of  March,  1897,  who  made  the  ruling  which 
was  cited  by  the  Senator  from  Rhode  Island  last  night.  I  was  unwilling 
to  cast  a  vote  last  night  which  might  appear  to  be  in  antagonism  to  that 
ruling,  as  there  would  then  be  no  opportunity  for  me  to  show  that  the 
vote  thus  cast  would  not  have  been  in  contravention  of  that  ruling  made 
by  myself  when  in  the  chair. 

I  recollect  the  incident  well  out  of  which  the  ruling  grew.  It  occurred 
during  a  night  session,  and  the  then  senior  Senator  from  Pennsylvania, 
Mr.  Quay,  was  the  Senator  who  demanded  the  roll  call  upon  the  sug- 
gestion of  the  lack  of  a  quorum.  He  had  previously  demanded  several 
such  roll  calls.  The  point  had  been  made  between  the  two  previous 
successive  roll  calls  that  no  business  had  intervened  and  that  therefore 


172  AMERICAN  FEDERAL   GOVERNMENT 

the  second  roll  call  was  not  in  order.  The  Chair  ruled  that  business  had 
intervened,  from  the  fact  that  in  the  interval  the  bill  then  under  considera- 
tion had  been  reported  from  the  Committee  of  the  Whole  to  the  Senate. 
Immediately  after  that  roll  call,  which  was  then  authorized  by  the  deci- 
sion of  the  Chair,  the  Senator  from  Pennsylvania,  without  waiting  for  any 
debate  or  any  other  action  on  the  part  of  the  Senate,  immediately  again 
suggested  the  absence  of  a  quorum.  That  matter  was  taken  up  at  once 
by  the  then  senior  Senator  from  Massachusetts,  Mr.  Hoar,  and  by  the 
then  Senator  from  New  York,  Mr.  Hill,  and  the  question  was  finally 
reduced  to  this  point  —  whether  or  not  business  had  intervened. 

The  Chair  ruled  that  business  had  not  intervened,  and  that  therefore 
the  second  roll  call  was  not  in  order.  There  had  been  no  debate  after  the 
roll  call,  and  there  was  no  suggestion  that  debate  was  not  the  intervention 
of  business.  There  was  no  question  raised  that  the  debate  following  a 
roll  call  did  not  constitute  business  which  had  intervened  after  the  roll 
call.  There  was  no  question  whether  debate  did  or  did  not  constitute 
business. 

The  question  last  night  was  whether  debate  constituted  business. 
There  confessedly  had  been  debate  last  night  after  the  roll  call,  and  the 
question  decided  by  the  Senate  last  night  was  that  the  occurrence  of 
debate  did  not  constitute  business. 

Mr.  President,  I  deemed  it  due  to  myself  to  state  why  I  did  not  vote  on 
the  question,  because  I  do  not  avoid  any  vote  that  comes  along;  but  I 
wished  to  call  the  attention  of  the  Senate  to  the  fact  that  the  precedent 
cited  last  night  by  the  Senator  from  Rhode  Island  was  not  a  controlling 
precedent  upon  the  question  raised  by  him,  because  in  one  case  there 
was  no  question  whether  debate  constituted  business,  and  in  the  case 
last  night  the  sole  question  was  whether  debate  constituted  business. 

I  desired,  Mr.  President,  to  say  this  much,  because  I  was  unwilling 
that  what  occurred  last  night  should  pass  as  an  unchallenged  precedent. 
I  regard  it  as  a  revolutionary  precedent,  and,  if  so  considered  by  the 
Senate,  I  am  willing  for  it  to  pass  as  one  adopted  under  the  heat  of  contest 
for  the  purpose  of  effecting  a  particular  end ;  but  it  will  be  a  most  griev- 
ous mistake,  in  my  opinion,  if  that  rule  should  be  adopted  as  the  rule  or 
precedent  to  hereafter  govern  the  action  of  the  Senate.  In  fact,  frequently 
here,  in  cases  of  protracted  contests,  for  days  and  days  there  is  nothing 
practically  but  debate.  It  is  true  we  have  the  morning  hour,  and  some 
measures  may  be  considered ;  but  so  far  as  the  main  body  of  the  work  of 
the  Senate  during  the  whole  day  is  concerned,  frequently  there  is  nothing 
but  debate.  To  say  that  it  having  once  been  disclosed  that  there  is  a 
quorum  there  can  be  thereafter  no  challenge  of  the  question  as  to  whether 
or  not  there  is  a  quorum,  it  seems  to  me,  must  be  a  very  grave  mistake. 


THE   SENATE  173 


THE   COMMITTEE   WORK   OF   SENATORS1 

[Senator  Hoar  in  his  autobiography  remarks  that  the  Committee  on  Claims 
alone  required  of  him  more  individual  work  than  is  performed  in  a  year  by  any 
judge  of  a  state  court,  and  the  amounts  dealt  with  were  greater  than  those 
involved  in  the  annual  litigation  before  any  state  supreme  court.  Though  state 
judges  may  dissent  from  this  estimate,  at  any  rate  it  indicates  the  impression 
which  the  drudgery  of  committee  work  made  upon  Mr.  Hoar.  The  nature  of 
this  work  is  illustrated  by  the  following  extracts.] 

MR.  BAILEY.  Mr.  President,  of  course  the  labor  to  be  performed  by 
the  Senator  himself  and  therefore  the  labor  to  be  performed  by  the  clerk 
or  his  assistant  grows  greater  every  year.  The  Government  is  touching 
the  people  at  so  many  new  places,  I  regret  to  say,  that  the  correspondence 
of  a  Senator  to-day  is  perhaps  five  times  what  it  was  in  the  days  to 
which  the  Senator  from  Maine  refers. 

The  truth  of  it  is  the  correspondence  of  a  Senator  has  become  the 
burden  of  a  Senator's  life,  and  the  task  of  writing  thirty  or  forty  and 
sometimes  fifty  letters  is  an  almost  daily  one  with  us.  Writing  those 
letters  for  a  thousand  years  would  not  add  a  cubit  to  a  man's  intellectual 
stature.  It  is  purely  a  burden,  but  it  is  one  which  must  be  performed. 
When  a  Senator's  constituent  writes  him  on  any  subject,  that  constituent 
is  entitled  to  a  prompt  and  a  respectful  answer,  and  if  the  Senator  does 
not  allow  the  constituent  to  hear  from  him  the  Senator  is  very  apt  to 
hear  from  the  constituent  at  the  proper  time;  and  I  share  the  resent- 
ment which  a  constituent  feels  toward  a  Senator  who  ignores  his 
communication. 

This  correspondence,  growing  from  year  to  year,  has  become  such  a 
great  burden  that  it  would  be  utterly  impossible  for  a  Senator  to  perform 
his  duties  without  clerical  assistance.  As  for  my  part  I  am  willing  to 
give  all  that  is  necessary,  but  I  am  not  willing  to  spend  one  dollar  of 
public  money  to  provide  patronage  for  anybody.  If  the  work  of  a  Sena- 
tor's committee  or  the  work  of  a  Senator  requires  three,  let  him  have 
them.  But  I  will  not  vote  one  dollar  of  public  money  merely  to  provide 
somebody  a  place.  Patronage  is  not  a  very  wholesome  thing  for  a  Senator 
to  cultivate,  and  certainly  it  is  not  a  very  wholesome  thing  for  the  Senate 
to  provide  places  merely  that  Senators  may  fill  them. 

But,  Mr.  President,  that  was  not  the  purpose  for  which  I  rose.  I  rose 
to  protest  against  the  inequality  which  offends  against  the  rule  of  justice. 
Either  some  clerks  are  paid  too  much  or  other  clerks  are  paid  too  little. 
My  own  opinion  is  that  some  clerks  are  paid  too  much.  But  if  Senators 
do  not  agree  with  me  in  that,  they  must  agree  with  me  that  men  who 
perform  the  same  services  should  receive  the  same  pay. 

1  Congr.  Record,  January  4,  1906. 


174  AMERICAN   FEDERAL   GOVERNMENT 

I  beg  to  say  that  I  do  not  mean  this  in  the  nature  of  a  complaint 
against  the  Senator  from  New  Jersey  or  the  committee  over  which  he 
presides ;  I  do  not  mean  it  as  a  complaint  against  any  committee  or  as 
against  the  Senate,  because  I  recognize  that  it  has  grown  up  from  time 
to  time,  as  suggested  by  the  Senator  from  Maine  [Mr.  Hale],  but  I  do 
insist  that  it  is  an  inequality  which  ought  to  be  corrected. 

Mr.  DANIEL.  Mr.  President,  I  am  not  one  of  those  Senators  who  are 
suffering  from  any  incumbrance  of  patronage,  but  every  Senator  has  to 
deal  with  a  great  many  people  who  have  very  mistaken  notions  as  to  his 
power  to  exercise  patronage.  I  do  not  think  that  any  Senator  here,  on 
either  side  of  the  House,  wishes  to  increase  the  clerical  force  of  the 
Senate  with  any  view  to  patronage.  It  is  purely  a  matter  of  public 
business  and  the  prompt  despatch  thereof. 

I  observe  in  a  detailed  statement  of  the  clerical  and  other  committee 
force  now  employed  and  paid  out  of  the  contingent  fund  of  the  Senate 
that  a  great  many  committees  have  three  or  four  employees,  some  of 
them  perhaps  more.  Amongst  the  committees  that  have  three  or  more 
I  will  enumerate  the  following:  First,  the  Committee  on  Printing 
Records.  I  do  not  see  the  name  of  a  Committee  on  Printing  Records  in 
the  list  of  committees,  and  I  did  not  know  there  was  one.  I  presume  it 
refers  to  the  Joint  Committee  on  Printing.  Probably  it  may  be  other- 
wise named  in  this  statement.  The  Committee  on  Appropriations  has 
four;  the  Committee  on  Finance  four;  the  Committee  on  Claims  four; 
the  Committee  on  Commerce  three;  the  Committee  on  Pensions  five; 
the  Committee  on  the  Judiciary  three;  the  Committee  on  Military 
Affairs  four;  the  Committee  on  Post-Offices  and  Post-Roads  four;  the 
Committee  on  the  District  of  Columbia  three ;  the  Committee  on  Foreign 
Relations  three ;  the  Committee  on  Agriculture  and  Forestry  three ;  the 
Committee  on  Territories  three ;  the  Committee  on  Interstate  Commerce 
three ;  the  Committee  on  Privileges  and  Elections  three ;  the  Committee 
on  Pacific  Islands  and  Porto  Rico  three;  the  Committee  on  the  Philip- 
pines three ;  the  Committee  on  Immigration  three. 

Mr.  President,  I  am  chairman  of  a  very  modest  committee  and  which 
has  a  very  modest  establishment  in  what  is  sometimes  called  the  ''cata- 
combs." I  have  no  right  to  complain  in  any  respect.  It  is  the  best  the 
situation  admits  of.  In  addition  to  that,  those  committees  which  have  as 
many  as  three  employees  having  already  been  stated,  there  was  a  motion 
to  give  the  Committee  on  National  Banks  a  messenger.  The  Committee 
on  National  Banks  is  not  one  of  the  great  committees  of  the  Senate, 
like  Appropriations  or  Finance,  and  it  seemed  that  if  we  were  going  to 
give  a  messenger  to  a  committee  which  had  a  single  topic  of  treatment, 
and  that  a  minor  one  as  compared  to  the  great  and  constant  affairs  of 
Government,  other  committees  of  like  order  ought  to  have  them. 

Now,  in  respect  to  committee  chairmanships  held  by  minority  members, 
this  observation  seems  appropriate :  Few  of  those  committees  have  much 


THE   SENATE  175 

business.  For  the  most  part  they  have  little  or  no  business.  The  com- 
mittee of  which  I  am  chairman  has  at  present  no  business  of  general 
public  concern.  The  committee  rooms  are  used  by  the  Senators  as 
offices,  especially  the  small  committees.  They  are  indispensable  to  the 
conduct  of  their  public  business.  The  committees  vary  as  to  their  busi- 
ness. A  particular  incident  happens  in  our  Government  by  which  a 
committee  is  overwhelmed  for  the  time  being  with  business  and  then, 
after  a  freshet,  again  there  is  a  drought.  You  can  not  in  the  nature  of 
things  tell  when  a  particular  committee  is  going  to  have  much  business. 
Our  Committee  on  Privileges  and  Elections,  for  instance,  has  had  very 
heavy  business  and  many  hearings  for  a  year  or  two.  The  time  will  soon 
come  perhaps  when  they  will  not  have  a  case  or  any  matter  of  importance 
referred  to  them.  We  can  not  measure  the  necessities  of  a  committee 
by  the  particular  business  which  may  be  upon  them  at  a  particular 
moment. 

I  had  presumed,  and  I  believe  such  is  the  case,  that  the  minority 
Senators  were  allowed  this  service  because  of  their  multifarious  con- 
nections with  the  Government,  rather  than  in  the  view  that  they  would 
need  these  appurtenances  and  this  aid  for  mere  committee  work. 

Mr.  President,  I  am  told  by  the  chairman  of  the  committee  which 
reported  this  resolution,  and  doubtless  it  is  true,  that  in  addition  to  these 
employees  who  are  paid  out  of  the  contingent  fund  of  the  Senate  the 
Senators  who  at  this  time  represent  the  majority  of  the  Senate  have 
numerous  other  employees  who  assist  in  their  work.  There  is  no  im- 
propriety whatsoever  in  that  if  it  is  indispensable  or  appropriate  to  their 
efficient  work. 

The  view  I  have  of  this  question  is  simply  this :  It  is  to  the  interest  of 
the  Senate  as  a  body  that  every  Senator  should  be  sustained  by  such 
appropriate  help  as  is  desirable  for  his  efficient  discharge  of  his  Senatorial 
duties.  A  day  may  come  at  any  time  when  his  committee  will  have  a 
good  deal  of  work,  although  at  that  particular  day  it  has  none.  Whether 
that  day  comes  or  not,  his  office  in  the  Capitol,  or  as  near  thereto  as 
accommodations  will  permit,  has  to  be  attended  by  his  clerical  force  and 
by  those  who  are  ready  to  wait  upon  him  and  to  help  him  in  the  execution 
of  his  office. 

The  Senate,  Mr.  President,  like  every  other  department  of  our  Govern- 
ment, is  congested.  Our  Calendars  are  congested  with  bills.  There  is 
not  a  bureau  of  the  Government  that  is  not  congested.  We  must  remem- 
ber that  we  have  added  an  empire  to  this  Republic,  call  it  by  whatever 
name  you  will ;  and  I  am  not  adverting  to  it  for  the  purpose  of  the  slight- 
est censorious  observation.  We  have  to  take  things  as  we  find  them. 
But  the  truth  is  that  the  American  Republic  at  home  is  a  republic,  and 
the  truth  is  also  that  from  the  far  Orient  to  out  in  the  Atlantic  it  is  an 
empire.  The  men  who  are  elected  here  as  Senators  of  the  United  States 
are  the  legislators  of  a  great  empire,  as  well  as  of  a  republic,  whether  they 


176  AMERICAN  FEDERAL   GOVERNMENT 

will  or  no.  That  has  come  about  in  the  destiny  of  this  nation,  and  I  am 
not  discussing  it  at  all  save  to  call  attention  to  the  fact.  We  had  brought 
up  before  the  Senate  this  morning  railroads  in  the  Philippine  Islands, 
7, oop  miles  from  where  we  are.  What  Senator  knows  anything  about 
the  subject,  and  how  is  he  to  inform  himself  ?  In  order  to  the  efficient 
discharge  of  the  Senatorial  duty  here,  the  Senator  ought  to  be  sustained 
and  have  every  employee  in  his  service  who  is  necessary  or  desirable  to 
write  his  correspondence,  to  visit  the  Departments,  and  to  meet  those 
who  wish  to  see  him  on  public  business. 

******** 

Mr.  GALLINGER.     Mr.  President,  a  single  word. 

The  first  two  years  I  had  service  in  this  body  I  had  the  honor  of  being 
chairman  of  the  Committee  on  Transportation  Routes  to  the  Seaboard, 
a  committee  that  did  not  hold  a  meeting  during  those  two  years  and  has 
not  held  a  meeting  since.  The  committee  had  a  clerk,  I  think  at  $1,500, 
and  we  got  along  very  comfortably.  I  was  promoted  from  that  position 
to  that  of  chairman  of  the  Committee  on  Pensions,  and  I"  need  not  more 
than  suggest  to  the  Senate  that  more  service  was  required  there  of  a 
clerical  nature  than  was  required  for  the  committee  I  had  formerly 
served  as  chairman.  From  that  committee  I  was  either  promoted  or 
demoted,  I  do  not  know  which,  to  the  chairmanship  of  the  Committee 
on  the  District  of  Columbia.  That  committee  is  trying  to  legislate  for 
about  300,000  people  who  are  denied  the  right  of  suffrage,  and  I  think 
it  is  safe  to  say  that  at  least  200,000  of  them  are  constitutional  kickers. 
We  have  a  procession  in  that  committee  room  constantly.  We  have  to 
deal  with  sewers,  with  lamp-posts,  with  electric  lights,  street  railways, 
steam  railways,  telephones,  telegraphs,  gas,  and  almost  every  other  con- 
ceivable subject.  That  committee  has  one  clerk,  an  assistant  clerk,  and 
a  messenger.  It  ought  really  to  have  more  clerical  assistance,  but  we 
manage  by  hard  work  to  get  along. 

The  proposition  embodied  in  the  resolution  which  was  adopted  a  few 
days  ago,  and  which  I  did  not  understand  fully,  was  -to  give  the  Com- 
mittee on  Woman  Suffrage,  as  an  illustration,  the  Committee  on  Ventila- 
tion and  Acoustics,  the  Committee  on  Standards,  Weights,  and  Measures, 
the  Committee  on  National  Banks,  and  the  Committee  to  Investigate 
Trespassers  upon  Indian  Lands 

Mr.  KEAN.  The  Committee  on  Ventilation  and  Acoustics  no  longer 
exists. 

Mr.  GALLINGER.  The  Senator  from  New  Jersey  says  the  Committee 
on  Ventilation  and  ^Acoustics  no  longer  exists.  If  necessary,  it  will  be 
revived.  The  proposition  was  to  give  those  committees  two  clerks  and  a 
messenger,  precisely  the  number  that  the  Committee  on  the  District  of 
Columbia  has. 

Now,  Mr.  President,  it  would  not  be  fair  to  have  an  adjustment  of 
that  kind  made,  and  I  submit  to  the  Senate,  without  desiring  to  make  any 


THE  SENATE 


177 


further  suggestion  about  my  own  committee,  that  if  each  of  these  minor 
committees  gets  a  clerk  and  an  assistant  clerk,  or  a  clerk  and  a  messenger 
it  will  be  a  very  liberal  disposition,  and  we  ought  all  to  be  satisfied  with  it. 
I  am  very  glad  to  know  that  the  Senator  from  Idaho,  after  thinking  the 
matter  over,  has  concluded  that  it  is  a  proper  thing  for  us  to  adopt  the 
resolution  as  amended. 

Mr.  BACON.  Mr.  President,  I  desire  to  say  simply  one  word  in  order 
that  what  has  just  been  said  by  the  Senator  from  New  Hampshire  may 
not  be  misunderstood,  either  here  or  by  the  public  in  regard  to  the  clerks 
of  committees  that  do  no  work. 

We  all  know  the  fact  that  there  are  committees,  some  of  which  have 
been  mentioned  by  him,  which  are  merely  nominal  committees.  But  it 
is  a  mistake,  Mr.  President,  to  have  the  impression  that  the  clerk  of  that 
committee  has  no  duty  to  perform  by  reason  of  the  fact  that  the  com- 
mittee itself  does  no  work.  The  fact  is  that  every  Senator,  whether  he  is 
chairman  of  a  committee  or  not,  has  a  secretary,  and  when  a  Senator  is 
chairman  of  a  committee  he  has  not  a  secretary  in  addition  to  the  clerk 
of  the  committee.  His  own  secretary  becomes  ex  officio  clerk  of  that 
committee,  or,  vice  versa,  the  clerk  of  that  committee  is  ex  omcio  his 
clerk  or  secretary. 

So,  when  it  is  said  that  the  clerk  of  the  committee  is  the  officer  of  a 
committee  which  is  never  called  together,  it  will  certainly  produce  a  very 
wrong  impression  if  it  is  understood  from  that  that  the  clerk  of  that 
committee  has  absolutely  no  duties  to  perform.  He  has  just  the  same 
duties  that  the  clerk  or  secretary  of  every  other  Senator  has  in  the  per- 
formance of  the  clerical  duty  required  by  that  Senator,  and  the  only 
effect  of  being  the  clerk  of  one  of  these  nominal  committees  is  that  he 
gets  a  little  more  salary  than  he  would  get  if  he  were  not  named  as  the 
clerk  of  a  committee.  He  is  in  fact  in  such  a  case  but  the  private  secre- 
tary of  the  Senator  and  in  no  manner  differs  from  any  other  private 
secretary  of  a  Senator  except  in  the  fact  that  he  gets  an  additional  amount 
of  salary. 

The  Senator  from  Florida  [Mr.  Mallory]  asks  me  about  the  assistant 
clerk.  It  is  true  also  in  that  case  that  the  clerk  of  a  committee,  who  is 
ex  officio  the  clerk  or  secretary  of  a  Senator,  and  the  assistant  clerk  are 
both  of  them  in  such  cases  simply  employed  in  the  work  of  the  Senator. 

I  may  speak  for  myself  as  the  chairman  of  one  of  the  so-called  nominal 
committees  (Woman  Suffrage),  having  only  occasionally  some  very 
interesting  audiences  from  a  very  interesting  and  charming  portion  of  the 
public.  Outside  of  that  particular  duty  which  devolves  upon  the  clerk  of 
the  committee  and  the  assistant,  who  is  detailed  from  the  Sergeant-at- 
Arms'  office,  the  official  work  which  those  two  officers  have  to  do,  in 
addition  to  the  committee  work,  is  more  than  can  be  reasonably  required 
of  them  without  other  clerical  assistance.  As  stated  by  the  Senator  from 
Idaho  ever  since  I  have  been  a  member  of  this  body,  with  rare  exceptions, 

12 


178  AMERICAN  FEDERAL   GOVERNMENT 

it  has  been  necessary  for  me  to  have  additional  clerical  force  to  that  which 
is  supplied  to  me  by  the  Senate.  To  all,  except  those  of  us  who  have  had 
experience  in  this  matter,  it  is  difficult  to  realize  the  vast  amount  of  office 
clerical  work  and  departmental  work  devolving  upon  even  those  of  us 
who  belong  to  the  minority,  and  how  utterly  impossible  it  is  for  any  one 
man  as  the  clerk  of  a  Senator  to  do  the  clerical  work  of  that  Senator. 
Two  are  required  for  every  Senator,  and  I  believe  for  an  average  of  the 
Senators  more  than  two  are  necessary  to  properly  discharge  the  duties. 

A  Senator  represents  the  constituency  of  a  whole  State.  My  State, 
Mr.  President,  is  not  the  largest  by  any  means.  It  occupies  about  the 
same  relation  to  the  other  States  now  that  it  did  when  the. Government 
was  formed.  It  is  about  the  thirteenth  State.  It  was  one  of  the  original 
thirteen  and  the  smallest  of  the  original  thirteen  in  population,  unless 
Delaware  or  Rhode  Island.  I  do  not  know  what  their  population  was  at 
that  time.  It  was  the  youngest  of  the  colonies.  My  State  at  the  time  of 
the  adoption  of  the  Constitution  was  the  youngest  colony  which  became  a 
State.  It  was  the  thirteenth  in  its  relation  to  the  other  States.  It  is  still 
about  the  thirteenth. 

Yet,  Mr.  President,  there  are  in  Georgia  two  million  and  a  half  of 
people  and  it  is  the  usual  thing  when  a  man  in  my  State  has  any  business 
of  particular  importance  in  Washington  about  which  he  writes  to  his 
Representative  that  he  also  writes  to  one  of  the  Senators  and  most 
frequently  to  both  of  them.  This  involves  not  only  the  correspondence, 
but  the  work  to  which  that  correspondence  relates.  I  presume  the  same 
is  true  of  all  other  Senators. 

Now,  Mr.  President,  considering  for  a  moment  Georgia  as  an  average, 
if  you  please,  what  must  be  the  immense  mass  of  business  which  devolves 
upon  a  Senator,  even  if  you  confine  it  to  the  routine  business,  with  a  vast 
constituency  behind  it,  with  even  a  fraction  of  i  per  cent  of  them  having 
something  to  attend  to  in  Washington? 

Mr.  President,  I  do  not  think  it  becomes  this  Government  (and  I 
know  I  speak  not  only  my  sentiment  but  the  sentiment  of  the  public  at 
large)  that  one  of  its  officials  shall  be  required  to  go  down  into  his  own 
pocket  to  pay  for  the  clerical  help  which  should  be  paid  for  by  the 
Government. 

I  do  not  know  what  the  status  of  this  resolution  is.  I  unfortunately 
reached  the  city  on  a  delayed  train  and  was  not  here  when  the  discussion 
opened.  I  do  not  propose  in  anything  I  say  to  impede  the  course  of  such 
procedure  as  those  who  have  been  here  all  the  time  and  have  participated 
from  the  beginning  in  this  debate  see  proper  or  best  to  be  done.  But  I 
thought  it  was  proper  that  I  should  say  this  in  connection  with  what  had 
been  said  by  the  Senator  from  New  Hampshire,  and  also,  in  addition,  to 
say  what  I  have  said  in  justification  of  what  may  seem  from  this  debate, 
or  from  certain  things  which  others  have  said  in  this  debate,  to  be  extrav- 
agance on  the  part  of  the  Senate  in  the  provision  it  makes  for  the 
clerical  force  assisting  a  Senator  in  the  discharge  of  his  labors. 


THE   SENATE  179 


SENATE  SECRET   SESSIONS1 

DEAR  old  Senator  Morgan's  "well  simulated  fury"  over  the  breaking 
of  the  inviolability  which  is  supposed  to  guard  the  secret  sessions  of  the 
Senate  has  been  the  one  gay  patch  in  the  inconclusive  ending  of  a  drab 
winter.  It  is  to  be  suspected  that  Mr.  Morgan  gladly  availed  himself 
of  the  report  of  his  San  Domingo  plot,  as  published,  to  introduce  in  the 
Senate  in  open  session  and  give  the  widest  publicity  to  his  resolution 
instructing  the  Foreign  Relations  Committee  to  examine  into  all  of  our 
recent  relations  with  San  Domingo,  including  the  preliminary  corres- 
pondence leading  to  the  present  comatose  protocol. 

Whatever  the  fathers  may  have  intended,  the  executive  sessions  of  the 
Senate  have  come  to  be  mere  farces.  They  are  always  reported,  and  even 
more  fully  than  the  open  debates.  No  senator  would  think  of  taking  the 
floor  in  a  closed  session  and  saying  things  that  he  did  not  care  to  have 
printed  broadcast,  or  that  he  would  not  say  with  the  doors  of  the  Senate 
chamber  open  and  the  galleries  filled. 

Had  Senator  Morgan  that  "easy  grasp  of  the  obvious,"  which  an 
English  journal  has  credited  to  President  Roosevelt  and  Emperor 
William,  he  would  not  wonder  how  the  reports  of  the  secret  proceedings 
of  the  Senate  were  secured.  They  are  not  obtained  from  Senator  Morgan 
or  any  of  the  "old  line "  senators.  Nor  were  they  to  be  had  from  Senators 
Hoar,  Cockrell,  or  Benjamin  Harrison.  Mr.  Morgan. retains  the  "high 
manner"  of  the  old  days.  His  account  of  how  he  repelled  an  unsophis- 
ticated correspondent  who  came  to  him  for  information  is  in  his  best 
style : 

"  Yesterday  I  was  kept  on  the  floor  for  a  long  time,  as  senators  remem- 
ber, by  a  current  discussion  of  matters,  a  mere  current  discussion  among 
senators,  and  I  was  prevented  by  that  from  really  completing  the  speech 
I  intended  to  make.  I  had  not  left  my  desk,  I  had  not  more  than  taken 
my  seat,  when  a  person  who  is  accustomed  to  being  about  the  lobbies  of 
the  Capitol  here,  a  reporter,  rushed  up  to  my  desk  and  asked  me  to  give 
him  a  statement  about  the  great  imbroglio  that  had  been  sprung, 
or  something  of  that  sort.  I  said  to  him,  'Sir,  you  have  no  right  to 
ask  me  a  word  about  what  'occurred  in  the  Senate.  You  will  get  no 
information  from  me.'  I  repelled  his  advance.  That  ought  to  have 
sufficed.  A  man  who  will  then  do  that  to  a  senator  ought  to  be  ex- 
pelled from  that  gallery,  and  never  permitted  to  take  a  seat  there  again, 
and  his  paper  ought  not  to  be  permitted  to  be  represented  in  that 
gallery." 

1  The  above  article,  a  special  correspondence  of  the  New  York  Evening  Post, 
March  18,  1905,  gives  an  interesting  account,  of  course  by  an  outsider,  of  Senate  secret 
sessions  in  which  executive  matters,  i.  e.,  treaties  and  appointments  are  discussed. 


i8o  AMERICAN   FEDERAL   GOVERNMENT 

AN  INCIDENT  OF  1871 

The  Alabama  senator  softened  the  force  of  his  blow  by  his  declaration 
that  he  was  not  ''in  the  slightest  degree  interrupted,  or  offended,  or 
distraught"  by  anything  that  had  been  printed.  Few  senators  are.  His 
plaint  did  not  have  even  the  slight  merit  of  novelty.  Just  thirty-four  ? 
years  ago  a  colloquy  took  place  on  the  floor  of  the  Senate  that,  with  a 
mere  change  of  names,  might  almost  have  served  as  a  report  of  yester- 
day's proceedings.  It  came  about  this  way : 

The  Senate  was  called  in  extra  session  in  May,  1871,  to  ratify  the 
so-called  "Washington  treaty"  between  this  country  and  Great  Britain. 
While  the  treaty  was  still  under  consideration  correspondents  of  a  New 
York  newspaper  secured  a  copy  and  printed  it.  The  disclosure  made  a 
great  furore.  A  special  committee  was  appointed  to  investigate,  the 
correspondents  were  arrested  and  imprisoned,  and  many  senators  and 
Senate  employees  were  questioned.  How  the  correspondents  got  the 
treaty  was  not  learned.  When  they  were  brought  to  the  bar  of  the  Senate 
a  long  debate  ensued  in  which  all  the  leaders  in  the  chamber  took  part. 
It  was  in  the  course  of  that  discussion  that  Senator  Chandler  of  Michigan 
said: 

"It  is  well  known  that  for  years  there  has  been  scarcely  an  utterance  on 
this  floor  that  has  not  been  reported  the  next  day  in  the  New  York  news- 
papers. It  is  utterly  impossible  for  these  gentlemen  to  be  in  a  position 
where  they  can  hear  the  debates,  and  yet  with  wonderful  accuracy  those 
debates  have  been  spread  upon  the  pages  of  newspapers  the  next  morning. 
There  must  be  a  culprit  in  this  body,  and  I  hope  this  committee  will  con- 
tinue its  investigations  until  the  culprit  is  found  out  and  brought  to  con- 
dign punishment,  I  care  not  who  he  is.  Let  the  culprit  be  expelled  from 
this  body,  for  he  has  no  business  here." 

Senator  Wilson  of  Massachusetts  accused  Chandler  himself  of  telling 
things  to  the  correspondents.  Chandler  jumped  to  his  feet  and  cried 
hotly,  "I  deny  it." 

Then  Mr.  Wilson  said:  "The  senator  denies  it.  I  know  it  to  be  true. 
I  know  it  to  have  been  so  over  and  over  again.  I  will  explain  what  I 
mean.  I  have  been  here  over  sixteen  years.  The  proceedings  of  this 
body  in  executive  session  have  found  their  way  into  the  press  all  this  time. 
It  was  so  before  I  came  here.  These  accounts  published  of  executive 
sessions  have  been  more  or  less  accurate.  How  did  they  get  into  the  news- 
papers ?  The  leading  papers  of  the  country  employ  gentlemen  to  come 
here  and  obtain  news.  They  are  men  of  capacity,  of  character.  They  are 
men  who  know  the  proceedings  of  this  Government  as  well  as  we  here  in 
the  Senate  know  them.  They  understand  what  the  Executive  is  doing; 
what  the  departments  are  doing.  They  know  something  of  the  history 
of  the  country.  Their  business  is  to  get  the  news,  even  ahead  of  time, 
and  let  the  people  know  what  is  to  happen. 


THE   SENATE  181 

"How  do  they  get  it?  We  are  here  doing  business.  Various  things 
come  up  here  in  executive  session,  nominations,  treaties,  debates,  talks. 
Does  it  all  end  here?  The  senator  from  Michigan  knows  it  does  not. 
He  knows  that  in  the  presence  of  other  parties,  he  and  all  senators  talk 
about  what  is  said  and  done.  They  do  so  in  their  rooms,  in  this  chamber, 
in  their  committee  rooms,  in  the  street,  and  especially  in  the  F  Street  cars. 
Every  senator  knows  this  is  true.  It  is  no  use  for  us  to  assume  this  virtue 
here  and  pretend  to  be  what  we  are  not.  The  truth  is  we  have  talked  too 
much.  We  have  all  done  our  full  share  of  giving  information,  and  the 
man  who  protests  the  most  that  he  has  not  done  it  has  probably  done 
more  than  any  other  member." 

Whereupon,  adds  the  unimaginative  chronicler  in  the  Congressional 
Globe,  the  senators  burst  into  laughter,  recognizing  the  truth  of  the  picture 
the  Massachusetts  senator  had  drawn.  His  words  are  as  true  to-day  as 
they  were  in  1871.  As  showing  how  the  temper  of  the  Senate  has  changed 
towards  these  disclosures  of  its  mysteries,  the  excitement  caused  by  the 
premature  publication  of  the  "Washington  Treaty"  and  the  publication 
of  the  San  Domingo  protocol  in  the  Evening  Post  last  week  may  be  fairly 
contrasted.  Thirty  years  ago  it  was  a  great  piece  of  enterprise  to  print  a 
treaty  while  it  was  being  considered  in  secret  session;  to-day  it  might 
almost  be  considered  a  part  of  a  correspondent's  routine  duty  from  the 
calm  way  in  which  it  is  received. 


THE  EXPULSION  OF  SECRETARY  YOUNG 

In  the  debate  following  Mr.  Morgan's  anachronistic  plea  for  protection, 
Mr.  Teller  declared  that  the  Senate  would  never  be  able  to  stop  these 
publications,  and  referred  to  the  expulsion  of  an  executive  secretary  for 
divulging  what  went  on  behind  the  closed  doors  of  the  Senate  Chamber. 
He  had  in  mind  James  Rankin  Young  of  Philadelphia,  a  brother  of  John 
Russell  Young,  formerly  Librarian  of  Congress.  Mr.  Young,  as  executive 
clerk  of  the  Senate,  for  many  years  attended  the  secret  sessions  and  kept 
the  record  of  the  proceedings.  A  committee  of  the  Senate  was  appointed 
in  1892,  with  the  late  Joseph  Dolph  of  Oregon  as  chairman,  to  determine 
the  responsibility  for  the  leakage  of  secrets.  This  body,  popularly  known 
as  the  "  smelling  committee,"  examined  many  newspaper  men  and  learned 
nothing,  but  decided  that  somebody  must  be  guilty,  and  the  Senate  ex- 
pelled Mr.  Young. 

He  was  generally  regarded  as  innocent ;  in  fact,  those  whose  business 
it  was  to  find  out  for  the  newspapers  what  the  Senate  did  in  secret  session 
knew  that  he  was.  Mr.  Young  went  back  to  Philadelphia,  and  before 
long  was  elected  to  Congress.  He  is  now  superintendent  of  the  dead 
letter  office. 


182  AMERICAN   FEDERAL   GOVERNMENT 


SENATOR  HOAR'S  INDIGNATION 

The  late  Senator  Hoar,  like  Mr.  Morgan,  was  a  great  stickler  for  the 
traditions  of  the  Senate,  and  carefully  observed  its  rules.  He  almost  ex- 
ploded with  fury  one  day,  and  justifiably,  when  a  breezy  youth  accosted 
him  in  a  corridor,  and;  slapping  him  on  the  shoulder  familiarly,  said: 
"Say,  Senator,  what  are  you  old  fellows  doing  in  there  to-day?" 

"  Young  man,"  was  the  choleric  response,  "if  it  befitted  my  age  and 
the  dignity  of  my  position,  I  should  take  you  by  the  scruff  of  the  neck, 
haul  you  out  on  those  steps,  and  chastise  you  as  you  deserve  to  be." 

At  another  time  when  some  of  the  old  senators  were  restive  because  of 
unusually  full  reports  which  were  being  printed  on  some  important 
matter  then  under  consideration  in  secret  session,  Senator  Clapp  of 
Minnesota  introduced  one  day,  when  the  doors  were  closed,  a  humorous 
resolution  setting  forth  that,  whereas  the  reports  of  the  executive  pro- 
ceedings of  the  Senate  in  the  newspapers  were  not  as  full  as  they  might 
.be,  and  whereas  the  newspaper  men  were  put  to  the  expense  of  some 
time  and  trouble  in  securing  their  information,  therefore  be  it  resolved, 
etc.,  that  in  future  reporters  be  invited  to  attend  closed  sessions,  so  that 
they  might  get  their  accounts  at  first  hand.  Mr.  Hoar  took  the  resolution 
in  all  seriousness,  and  the  next  day,  while  Mr.  Morgan  was  indulging  in 
some  singularly  frank  comments  on  Nicaragua,  the  senior  Massachusetts 
senator  sought  out  Clapp  and  said:  "Now,  Senator,  you  see  the  good 
of  executive  sessions.  If  what  Morgan  is  saying  was  reported,  Nicaragua 
would  be  ablaze  to-day." 

"Well,  Senator,"  was  the  Westerner's  response,  "do  you  think  this 
country  would  come  to  any  harm  if  Nicaragua  blazed  until  she  became 
charcoal?" 

One  day  while  the  Senate  was  in  secret  session  a  group  of  correspon- 
dents were  awaiting  in  the  lobby  near  the  marble  room  for  their  friends 
to  come  out,  when  Senator  Tillman  came  along.  He  saw  the  waiting 
group  and  began  banteringly :  "  We  are  attending  to  you  men  now.  You 
will  never  get  any  more  reports  of  our  secret  proceedings.  Some  of  the 
old  fellows  in  there  are  giving  you  Hail  Columbia,  and  they  are  going  to 
get  up  a  scheme  so  that  you  will  not  be  able  to  find  out  anything  else 
that  we  do." 

Presently  he  was  followed  by  Jones  of  Arkansas,  like  Morgan  and 
Hoar  a  strong  defender  of  senatorial  privileges.  He  thought  the  time 
ripe  for  a  jibe,  and  remarked,  "I  suppose  you  gentlemen  are  fully 
informed  as  to  what  is  going  on  inside?" 

"Yes,"  said  the  spokesman  of  the  correspondents,  who  told  him  what 
they  had  all  learned  from  Tillman,  omitting,  of  course,  any  reference  to 
the  source  of  his  information.  Mr.  Jones  was  aghast.  He  hurried  back 
into  the  Senate,  and  quickly  secured  recognition  from  the  chair.  "Mr. 


THE   SENATE  183 

President,"  he  said,  "it's  no  use. trying  to  do  anything.  Things  are 
worse  than  I  suspected.  I  stepped  out  of  the  chamber -a  few  moments 
ago,  and  met  a  number  of  correspondents.  They  know  everything  that 
we  are  doing  in  here.  They  know  what  we  are  saying,  and  what  we  are 
trying  to  do.  We  might  as  well  give  up  hope  of  trying  to  stop  them  from 
learning  our  secrets." 


SENTIMENT  FOR  ABOLISHING  THE  CLOSED  SESSION 

A  growing  sentiment  to  do  away  with  the  closed  session  except  in  the 
confirmation  of  Presidential  appointees,  is  making  itself  felt  among  the 
younger  men  in  the  Senate.  These  secrets  are  always  faithfully  kept,  or 
given  in  confidence  to  the  newspaper  men,  because  they  often  involve 
questions  touching  men's  characters  and  private  lives.  No  real  pretence 
is  made  of  keeping  any  other  Senate  business  from  the  public.  The  effort 
to  have  the  debates  on  the  Dominican  protocol  made  public  was  signifi- 
cant, as  showing  the  changed  attitude  of  the  more  progressive  among  the 
members  of  the  upper  chamber. 


SENATORIAL   MAIDEN   SPEECHES1 

A  TRADITION  has  grown  up  about  the  snubs  and  sarcasms  which  await 
the  Senator  who  addresses  the  Senate  before  he  has  a  term  or  so  of  un- 
obtrusive service  behind  him.  We  do  not  hear  so  much  about  what 
such  an  iconoclast  gains.  Senatorial  dignity  was  shocked  profoundly,  no 
doubt,  last  Wednesday,  when  the  new  Senator  from  Arkansas  took  the 
floor  for  a  long  speech  on  his  anti-Trust  bill.  Yet  the  impartial  Associated 
Press  records  that  "all  of  the  Senators,  both  Republicans  and  Democrats, 
were  in  their  seats  and  gave  strict  attention  to  his  remarks."  The  speech, 
to  be  sure,  was  balderdash.  A  Southern  auditor  is  said  to  have  remarked 
that  the  new  Senator  had  omitted  the  only  thing  he  had  ever  said  that 
was  worth  while  —  namely,  that  he  was  no  relation  to  Jefferson  Davis. 
But  it  got  at  least  twice  as  much  publicity  as  if  its  author  had  waited  till 
he  himself  had  ceased  to  be  a  novelty  at  Washington. 

Moreover,  when  one  refers  in  these  days  to  the  immemorial  tradition 
that  new  Senators  should  be  seen  and  not  heard,  he  must  recognize  that 
a  notable  line  of  contrary  precedents  has  also  been  laid  down.  Davis  is 
not  the  first  Senator,  but  the  fourth,  within  a  little  more  than  ten  years, 
who  "refused  to  wait  until  his  hair  had  turned  gray  before  taking  up  his 
work  actively."  He  was,  to  be  sure,  the  most  impatient,  for  he  held  back 
his  eloquence  for  only  nine  days  after  the  beginning  of  his  first  session, 

1  Editorial  from  the  New  York  Evening  Post,  1907. 


184  AMERICAN  FEDERAL   GOVERNMENT 

whereas  Beveridge  restrained  himself  for  36  days,  Tillman  for  58,  and 
La  Follette  for  109.  In  spite  of  Tillman's  reputation  for  bluntness,  it 
may  be  recalled  that  he  took  more  time  than  any  of  the  others  in  justify- 
ing himself  for  speaking  at  all  before  taking  up  his  speech  proper.  This 
was  the  beginning  of  his  "pitchfork"  speech: 

I  shall  make  no  apology  for  doing  what  is  my  right  here,  to  exercise  the 
functions  of  a  Senator,  and  discuss  the  issues  presented  to  the  Senate.  I  know, 
sir,  that  custom  has  made  it  a  rule  that  new  members  of  this  body  should  listen 
rather  than  be  heard,  and  my  brief  experience—  and  while  in  the  city  I  have 
been  very  attentive  upon  the  sessions  of  the  Senate  —  has  shown  me  that  the 
custom  is  a  wise  one,  because  new  men  who  come  in  here,  especially  those  who, 
like  myself,  have  had  little,  in  fact,  no,  legislative  experience,  realize  very  soon 
that  what  they  do  not  know  about  the  affairs  of  this  great  government  is  far 
more  than  they  do  know  or  can  hope  to  learn  without  much  labor. 

Of  course,  the  novelty  of  a  farmer  pretending  to  talk  finance,  or  to  under- 
stand the  question,  is  so  great  that  most  of  my  colleagues  are  doing  me  the 
honor,  I  believe  for  the  first  time  this  session,  to  sit  here  and  listen  to  me.  I 
thank  you,  gentlemen,  that  you  have  not  adjourned  and  gone  off. 

Beveridge,  as  might  be  expected,  did  not  speak  because  he  wanted  to, 
but  only  to  perform  a  public  service.  These  were  the  words  of  his 
introduction : 

Mr.  President,  I  address  the  Senate  at  this  time  because  Senators  and  mem 
bers  of  the  House  on  both  sides  have  asked  that  I  give  to  Congress  and  the 
country  my  observations  in  the  Philippines  and  the  Far  East,  and  the  con- 
clusions which  those  observations  compel ;  and  because  of  hurtful  resolutions 
introduced  and  utterances  made  in  the  Senate,  every  word  of  which  will  cost, 
and  is  costing,  the  lives  of  American  soldiers. 

La  Follette  made  no  exordium  at  all.  He  had  spoken  the  equivalent 
of  eight  columns  in  the  Congressional  Record  before  he  made  any  allusion 
to  his  auditors.  Then: 

I  pause  in  my  remarks  to  say  this:  I  cannot  be  wholly  indifferent  to  the  fact 
that  Senators,  by  their  absence  at  this  time,  indicate  their  want  of  interest  in 
what  I  may  have  to  say  upon  this  subject.  The  public  is  interested.  Unless 
this  important  question  is  rightly  settled  seats  now  temporarily  vacant  may  be 
permanently  vacated  by  those  who  have  the  right  to  occupy  them  at  this  time. 
[Applause  in  the  galleries.] 

Different  as  were  and  are  these  four  contemners  of  tradition  in  other 
respects,  they  all  could  claim  credit  for  having  something  to  say.  It  is 
only  on  men  of  this  type  that  the  Senatorial  tradition  bears  hard.  What  is 
the  proper  course  for  the  man  who  sincerely  believes  that  he  has  some- 
thing to  say  which  needs  to  be  said  but  which  no  one  else  will  say  if  he 
keeps  silence?  His  dilemma  is  not  new.  When  Charles  Sumner  was 


THE  SENATE  185 

elected  to  the  Senate  his  constituents  and  the  anti-slavery  people  of  the 
country  generally  expected  him  to  make  things  lively  for  the  slaveholders' 
ring  at  Washington.  He  believed  in  biding  his  time,  and  spoke  on  land 
grants,  foreign  postage,  and  various  routine  matters  before  he  so  much 
as  mentioned  slavery.  As  Moorfield  Storey  says  in  his  life  of  Sumner, 
"he  felt  it  wise  to  become  familiar  with  his  colleagues  and  his  surround- 
ings, with  the  rules  and  atmosphere  of  the  Senate,  and  to  show  that  he 
was  not  'a  man  of  one  idea'  —  a  fanatic  at  once  unreasonable  and  un- 
practical." In  spite  of  misconstruction  of  his  silence  by  both  friends  and 
opponents,  he  waited  till  May  26,  one  hundred  and  seventy-seven  days 
after  the  opening  of  the  session,  before  giving  notice  of  a  slavery  speech, 
and  this  he  did  not  actually  secure  the  chance  to  deliver  until  the  end  of 
August. 

Aside  from  the  activities  of  men  with  something  special  to  say,  the 
traditions  of  the  Senate  are  not  and  never  have  been  in  the  slightest  danger. 
The  average  of  new  Senators  take  their  places  amiably  on  the  back  seat. 
Our  own  Senator  Depew,  though  accustomed  to  being  bound  up  with 
Demosthenes  and  Patrick  Henry,  was  quite  content  to  make  his  Sena- 
torial debut  with  one  of  the  conventional  Sunday  eulogies  on  deceased 
members. 

Yet  we  are  of  the  opinion  that  length  of  service  is  counting  for  rather 
less  than  formerly  in  making  up  the  sum  of  Senatorial  influence.  Dis- 
regarding the  orators  with  outside  reputations,  first-term  men  have  been 
pretty  prominent  in  the  Senate  for  some  time.  Those  Senators  pro- 
moted from  the  House,  like  Dolliver  and  Hemenway,  Bailey  and  New- 
lands,  have  not  had  to  wait  long  for  a  chance  to  be  more  than  auditors. 
Crane,  without  previous  legislative  experience,  is  named  among  Senate 
leaders.  Thus  no  sooner  does  the  outside  public  become  duly  impressed 
with  the  awful  tradition  that  only  graybeards  count  in  the  Senate  than  it 
begins  to  break  down. 


PRINTING   SPEECHES    IN  THE   RECORD1 

THE  VICE-PRESIDENT.  The  request  is  that  the  Senator  from  Missouri, 
being  ill,  may  be  permitted  to  print  the  residue  of  his  speech  in  the 
Record,  together  with  such  additions  and  extensions  as  he  may  desire. 

Mr.  BACON.  I  think  that  would  be  a  very  unfortunate  precedent.  I 
have  never  known  such  a  request  to  be  made  in  the  Senate.  We  know 
that  in  the  other  House  it  is  the  common  practice  and  the  recognized 
practice,  but  I  think  it  would  be  very  unfortunate  for  us  to  set  a  prece- 
dent of  that  kind  here  to  print  speeches  which  are  not  delivered.  I  hope 
it  will  not  be  done. 

1  Congr.  Record,  Apr.  29,  1908. 


i86  AMERICAN   FEDERAL   GOVERNMENT 

I  am  perfectly  willing  that  every  indulgence  possible  may  be  given  to 
the  Senator  from  Missouri,  but  if  this  be  done  once,  where  will  be  the  end 
of  it?  I  know  it  is  generally  supposed  throughout  the  country  —  I  say 
generally  —  possibly  that  is  probably  too  broad  a  term,  but  it  is  thought 
by  many  that  the  practice  which  obtains  in  one  House  obtains  also  in  the 
other.  But  it  has  never  obtained  here.  There  is  great  liberality  as  to 
publishing  without  being  read  exhibits  or  papers  which  are  used  in  a 
speech.  They  are  allowed  to  be  inserted  in  the  Record;  but  this  is  the 
first  time  I  have  heard  during  my  limited  term  of  service  here  a  request 
made  that  a  speech  which  has  not  been  delivered  should  be  printed  in  the 
Record. 

I  would  say  this,  Mr.  President :  If  it  were  near  the  close  of  the  session 
and  the  Senator  from  Missouri  had  been  prevented  by  illness  from 
delivering  his  speech,  that  would  be  a  providential  matter  which  might 
be  recognized  as  a  sufficient  ground  upon  which  to  base  exceptional 
action  on  the  part  of  the  Senate.  But  we  have  no  reason  to  doubt  the 
fact,  I  presume,  that  the  Senator  will  have  the  opportunity  before  the 
session  closes  to  conclude  his  remarks.  While  I  have  every  disposition  to 
concede  everything  which  circumstances  may  demand,  I  do  not  think 
that  the  present  circumstances  demand  that  we  should  make  such  a 
wide  departure  from  the  practice  of  the  Senate  and  inaugurate  a  prece- 
dent which  certainly  would  be  followed  in  the  future  in  other  instances. 

Mr.  LODGE.  I  am,  of  course,  entirely  aware  of  the  rule  of  the  Senate 
against  extending  speeches  in  the  Record.  I  think  it  is  an  extremely 
wise  rule  and  I  hope  it  will  never  be  changed.  In  this  particular  case 
the  Senator  who  has  given  the  notice  that  he  would  complete  his  speech 
to-day  is  ill.  He  may  be  several  days  absent  from  the  Senate  and  it  may 
be  some  time  longer  before  he  will  be  able  to  complete  the  delivery  of  his 
speech.  He  sent  a  message  to  me  desiring  to  express  to  the  Senate  the 
hope  that  he  might  be  permitted  to  print  his  speech  as  it  stands,  most  of 
it  having  already  been  delivered.  It  contains  a  large  number  of  extracts 
from  testimony  which  could  be  perfectly  well  embodied  and  which 
permission  is  constantly  given. 

I  have  no  desire  to  infringe  any  rule,  nor  would  he  have  any  such  desire. 
I  am  as  strongly  in  favor  of  the  practice  and  rule  of  the  Senate  in  this 
respect  as  anyone  can  be.  I  thought  this  was  an  exceptional  case  in 
which  this  relief  might  be  given  to  a  Senator  who  was  ill. 

I  certainly  shall  not  insist  on  the  request  if  there  is  any  objection  to  it. 
I  merely  desired  to  say  that  the  Senator  from  Missouri  could  not  go  on 
to-day  and  it  is  uncertain  when  he  will  be  able  to  complete  the  delivery  of 
his  speech. 

Mr.  TELLER.  Mr.  President,  I  understand  that  if  at  any  time  a  Senator 
is  unable  to  read  a  speech  which  he  has  prepared,  it  has  been  the  custom 
here  for  some  time,  I  know,  that  he  may  ask  some  Senator  to  read  it  for 


THE  SENATE  187 

him.  It  may  be  read  for  him,  but  it  must  be  either  read  by  him  or  some 
one  else  before  it  goes  into  the  Record. 

Mr.  LODGE.  If  the  Senator  from  Missouri  desires  to  have  the  remain- 
der of  his  speech  read  to  the  Senate  and  to  complete  it  in  that  way,  I  am 
sure  I  should  be  very  glad  to  assist  him,  and  I  have  no  doubt  others  would 
be,  in-  arranging  it  in  that  manner  and  relieve  him  from  the  delivery  of  the 
remainder  of  his  speech. 

I  thought  it  well,  however,  to  make  the  statement  at  this  time  that  he 
would  not  be  here  to-day  to  carry  out  the  notice  which  appears  on  the 
Calendar,  and  which  would  leave  the  day  clear,  if  the  Senator  from 
New  Hampshire  desires,  as  I  hope  he  does,  to  take  up  the  child-labor 
bill  this  morning,  because  I  understand  the  agricultural  appropriation 
bill  will  not  be  taken  up  until  to-morrow. 


VI 


SENATE   AND    HOUSE    CONFERENCE 
COMMITTEES 

[Conference  committees  composed  of  members  of  both  Houses  constitute  a 
most  essential  part  of  the  legislative  machinery.  Many  questions  and  contro- 
versies have  arisen  with  respect  to  them.  In  the  first  place,  the  conference  com- 
mittee has  often  been  used  as  an  instrument  by  which  the  Senate  has  made  its 
will  prevail  over  the  House.  Towards  the  end  of  the  session,  when  little  or  no 
time  remains  for  action  in  either  House,  the  conference  committees  meet. 
The  representatives  of  the  Senate,  a  body  which  is  ordinarily  quite  sure  of  its 
purposes,  have  frequently  used  the  general  freedom  of  debate  in  the  Senate  as 
a  cudgel  to  force  the  House  of  Representatives  to  yield  its  position.  It  is  argued 
on  such  occasions  that  unless  the  view  of  the  Senate  is  adopted  no  legislation 
can  be  secured,  because  any  other  alternative  will  be  talked  to  death  by  in- 
dividual Senators.  Action  of  this  kind  led  to  Mr.  Cannon's  remonstrance, 
which  is  given  below.  Matter  which  under  the  rules  of  the  House  can  not  be 
introduced  in  a  general  appropriation  bill  will  frequently  be  put  in  as  a  Senate 
amendment  and  will  come  back  to  the  House  as  a  part  of  the  conference  report. 

But  it  is  especially  the  procedure  of  the  House  which  makes  the  conference 
committee  so  powerful.  When  the  Senate  amendments  are  returned  to  the 
House  no  debate  is  allowed  by  the  Speaker;  the  regular  practice  is  to  disagree 
to  the  amendments  in  bulk  and  appoint  a  conference  committee  by  which  the 
details  of  legislation  will  be  settled.  The  discussion  of  the  conference  report  on 
the  Rate  Bill  will  illustrate  this  procedure.  Certain  of  the  amendments  pro- 
posed by  the  Senate  would  have  been  sure  of  adoption  in  the  House,  had  the 
Speaker  permitted  a  separate  vote  on  such  amendments;  but  as  will  be  seen 
from  the  debate  on  this  matter,  the  House  was  not  permitted  to  express  itself 
upon  the  amendments.  It  has  been  suggested  that  these  amendments  were 
allowed  to  pass  in  the  Senate  because  it  felt  sure  that  the  House  would  not  be 
permitted  to  vote  on  them,  but  would  disagree,  and  that  they  might  then  be  dis- 
posed of  in  the  conference  committee.  About  this  matter  the  reader  will  be 
able  to  form  his  own  opinion  from  the  documents.  The  action  of  the  conference 
committee  on  the  Currency  Bill  in  1908  was  also  especially  significant.  In  this 
case  the  committee  on  currency  in  the  House  had  been  divested  of  its  juris- 
diction through  the  action  of  a  party  caucus.  The  House  bill  resulting  from 
this  action  was  thrown  into  conference  together  with  the  Senate  bill,  and  only 
most  limited  debate  was  allowed  at  any  time  during  the  proceedings.  We 
have  already  seen  the  result  of  this  action  upon  the  procedure  in  the  Senate. 

1 88 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES      189 

The  following  extracts  deal  with :  i.  The  conference  committee  on  the  Railway 
Rate  Bill  of  1906.  2.  The  Army  Appropriation  Bill  of  1902.  3.  The  Naval 
Appropriation  Bill  of  1908.  4.  The  Currency  Bill  of  1908.] 


REPORT    ON   THE    RAILWAY   RATE    BILL1 

MR.  DALZELL.  Mr.  Speaker,  I  submit  the  following  privileged  report 
from  the  Committee  on  Rules,  which  I  send  to  the  desk  and  ask  to  have 
read. 

The  Clerk  read  as  follows : 

The  Committee  on  Rules,  to  whom  was  referred  House  resolution  534,  have 
had  the  same  under  consideration,  and  herewith  report  the  following  in  lieu 
thereof :  • 

"Resolved,  That  the  bill  (H.  R.  12987)  to  amend  an  act  entitled  'An  act  to 
regulate  commerce,'  approved  February  4,  1887,  and  all  acts  amendatory 
thereof,  and  to  enlarge  the  powers  of  the  Interstate  Commerce  Commission,  be, 
and  hereby  is,  taken  from  the  Speaker's  table  with  Senate  amendments  thereto, 
to  the  end  that  the  said  amendments  be,  and  hereby  are,  disagreed  to,  and  a 
conference  be,  and  hereby  is  asked  with  the  Senate  on  the  disagreeing  votes 
upon  the  said  amendments;  and  the  Speaker  shall  immediately  appoint  the 
conferees  without  intervening  motion." 

Mr.  DALZELL.    Mr.  Speaker,  on  that  I  demand  the  previous  question. 

The  SPEAKER.    The  question  is  on  ordering  the  previous  question. 

While  the  House  was  dividing  Mr.  Williams  demanded  a  division. 

Mr.  DALZELL.    Mr.  Speaker,  I  demand  the  yeas  and  nays. 

The  yeas  and  nays  were  ordered. 

The  question  was  taken;  and  there  were  —  yeas  155,  nays  83,  an- 
swered "present"  15,  not  voting  128. 

The  SPEAKER.  The  previous  question  is  ordered,  and  the  gentleman 
from  Pennsylvania  is  entitled  to  twenty  minutes  and  the  gentleman  from 
Mississippi  to  twenty  minutes. 

Mr.  DALZELL.  Mr.  Speaker,  the  bill  referred  to  in  the  resolution 
which  has  just  been  read  is  what  is  popularly  known  as  "the  rate  bill." 
It  is  a  matter  of  common  knowledge  that  it  passed  the  House  almost 
unanimously  and  went  to  the  Senate  some  seven  or  eight  weeks  ago.  It 
comes  back  now  with  fifty  Senate  amendments  and  is  on  the  Speaker's 
table.  The  purpose  of  this  rule,  if  adopted,  is  to  take  that  bill  from  the 
Speaker's  table,  nonconcur  in  all  the  Senate  amendments,  and  send  the 
bill  to  conference.  That  is  all  there  is  in  the  rule.  I  reserve  the  balance 
of  my  time. 

Mr.  PALMER.  Suppose  a  man  wants  to  vote  to  concur  in  some  of  the 
amendments  and  to  nonconcur  in  others? 

Mr.  DALZELL.    This  rule  prevents  that. 

1  Congr.  Record,  May  25;  1906. 


AMERICAN  FEDERAL   GOVERNMENT 

Mr.  PALMER.    You  have  got  to  take  the  whole  dose  ? 

Mr.  DALZELL.  In  the  absence  of  this  rule  there  would  be  of  course  a 
possibility  of  debate  on  fifty  amendments.  The  House  will  of  course 
have  an  opportunity  to  pass  upon  the  question  of  the  amendments  on  the 
report  of  the  conferees. 

Mr.  PALMER.  There  will  be  some  opportunity  somehow  or  other  to 
debate  the  amendments? 

Mr.  DALZELL.  Undoubtedly.  This  has  no  reference  to  anything  in 
connection  with  the  bill  except  the  present  procedure. 

Mr.  PALMER.  When  the  report  of  the  conference  committee  comes  in, 
suppose  you  introduce  another  rule  of  a  similar  character  to  cut  off  all 
debate  in  the  same  way  you  are  doing  now,  how  about  that  ? 

Mr.  DALZELL.  I  can  of  course  only  speak  for  myself,  but,  in  the  first 
place,  a  rule  amounts  to  nothing  unless  the  House  adopts  it,  and,  in  the 
second  place,  I  do  not  believe  there  is  a  disposition  on  the  part  of  anybody 
to  do  any  such  thing. 

Mr.  BARTLETT.    I  would  like  to  ask  the  gentleman  a  question. 

Mr.  NORRIS.  I  would  like  to  ask  the  gentleman  with  a  view  of  getting 
the  parliamentary  situation  as  it  would  be  before  us  in  the  conference 
report.  Suppose  now,  to  illustrate,  that  the  amendment  which  I  under- 
stand the  Senate  has  added  to  the  bill  providing  for  including  within  the 
terms  of  the  bill  express  companies  —  an  amendment  which  very  many 
of  us  voted  for  when  the  bill  was  here — suppose,  now,  the  conferees  bring 
in  a  report  in  which  the  Senate  amendment  placing  express  companies  in 
the  bill  is  eliminated  ?  What  opportunity  then  would  we  have  after  they 
have  made  that  sort  of  a  recommendation  to  vote  in  favor  of  including  in 
the  bill  express  companies? 

Mr.  DALZELL.  Why,  the  House,  of  course,  can  disagree  to  the  con- 
ference report  and  can  instruct  its  conferees. 

Mr.  WILSON.  It  would  defeat  the  entire  bill  if  we  were  to  disagree  to 
the  conference  report. 

Mr.  DALZELL.  Not  at  all. 

Mr.  NORRIS.  Would  not  this  rule,  if  the  gentleman  will  permit  a 
further  interruption,  be  regarded  by  the  conferees,  and  ought  they  not 
in  fact  regard  this  vote,  if  we  adopt  this  procedure,  as  an  instruction  to  the 
conferees  that  the  House  is  opposed  to  all  of  the  Senate  amendments  ? 

Mr.  DALZELL.  By  no  manner  of  means.  Speaking  for  one  of  the 
Committee  on  Rules,  there  are  some  of  these  amendments  that  personally 
I  should  vote  to  concur  in  right  now. 

Mr.  NORRIS.    I  would  like  to  vote  to  concur  in  some  of  them. 

Mr.  DALZELL.  It  is  a  mere  question  of  procedure  to  facilitate  the 
public  business.  Has  the  gentleman,  or  any  other  gentleman  in  this 
House,  any  idea  that  we  are  going  to  adjourn  until  the  rate  bill  is  disposed 
of? 

Mr.  NORRIS.     Oh,  no.     I  want  to  reach  a  parliamentary  situation 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     191 

that  will  give  us  all  an  opportunity  to  vote  for  any  of  these  amendments 
that  we  favor. 

Mr.  DALZELL.  I  think  the  gentleman  will  have  that  opportunity 
under  the  rules  of  the  House. 

Mr.  BARTLETT.  May  I  ask  the  gentleman  from  Pennsylvania  if, 
under  the  rules,  no  matter  what  the  conferees  agree  to  or  disagree  to,  the 
House  will  not  be  called  to  vote  up  or  vote  down  the  report  as  a  whole 
and  will  not  be  permitted  to  vote  for  any  separate  amendment  ?  In  other 
words,  under  the  rules  of  the  House,  as  they  have  been  construed,  we  will 
be  compelled  to  vote  for  the  report  as  a  whole  ? 

Mr.  DALZELL.  The  House  can  vote  down  the  conferees'  report  and 
instruct  the  conferees  as  to  anything  in  the  report. 

Mr.  BARTLETT.  I  understand  that.  The  House  will  not  get  an 
opportunity,  if  we  adopt  these  rules,  to  vote  for  any  one  of  these  amend- 
ments separately.  If  we  had  them  before  us  now,  we  could  say  whether 
we  are  in  favor  or  opposed  to  them. 

Mr.  DALZELL.  The  gentleman  knows  that  under  the  rules  of  the 
House  the  House  will  have  an  opportunity  to  pass  on  every  amendment 
the  Senate  has  suggested. 

Mr.  COOPER  of  Wisconsin.  The  gentleman  from  Pennsylvania 
[Mr.  Dalzell]  says  that  we  could  instruct  the  conferees  later.  What 
earthly  objection  is  there  to  giving  the  House  an  opportunity  to  instruct 
the  conferees  now?  [Applause.]  Why  not  vote  now  on  the  express- 
company  amendment,  that  every  man  in  this  House  who  wants  regulation 
of  transportation  desires? 

Mr.  DALZELL.  We  can  not  very  well  allow  any  particular  amendment 
to  be  voted  on  at  this  time,  and  unless  we  do  follow  the  mode  of  pro- 
cedure that  is  suggested,  we  will  run  into  a  discussion  of  fifty  amend- 
ments right  away.  I  have  no  idea  that  any  gentleman  will  be  disappointed 
as  to  having  a  vote  on  any  particular  amendment  he  wants  at  the  proper 
time.  I  think  it  is  not  customary  to  instruct  conferees  in  advance  of  a 
full  and  free  conference. 

Mr.  COOPER  of  Wisconsin.  Will  the  gentleman  permit  me  to  make 
one  statement? 

Mr.  DALZELL.    Certainly. 

Mr.  COOPER  of  Wisconsin.  I  have  to  say  this,  that  I  have  been  in- 
formed by  a  gentleman  in  whose  word  I  place  implicit  confidence  that 
gentlemen  —  I  am  not  saying  whether  members  of  the  Senate  or  of  the 
House  —  who  will,  under  the  rules  that  obtain  in  the  respective  bodies, 
be  upon  the  conference,  have  in  conversation  said  that  in  so  far  as  they 
have  the  power  the  express-company  amendment  shall  go  out  —  that 
they  were  heard  to  say  so. 

Mr.  DALZELL.  I  know  nothing  about  that,  but  I  do  not  take  much 
stock  in  the  expression  of  what  a  single  Member  of  the  House  is  going  to 
do.  The  House  is  in  control  of  the  bill  at  all  times. 


1 92  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  COOPER  of  Wisconsin.  Let  me  suggest  to  the  gentleman  from 
Pennsylvania  that  the  House  is  in  a  hurry  to  adjourn.  Suppose  the  con- 
ferees hold  this  up  two  or  three  weeks,  until  tacitly  we  have  agreed  that 
we  will  adjourn  on  the  i5th  or  2oth  of  June.  There  will  be  then  no 
opportunity  for  debate,  because  everybody  will  be  in  a  hurry  to  get  home. 

Mr.  DALZELL.    There  will  be  an  opportunity  for  debate. 

Mr.  HEPBURN.  Will  the  gentleman  from  Pennsylvania  [Mr.  Dalzell] 
permit  me  for  a  moment  to  ask  the  gentleman  from  Wisconsin  to  state 
the  persons  that  have  thus  declared  themselves? 

Mr.  COOPER  of  Wisconsin.  I  do  not  wish  to  offend  especially  the 
feelings  of  the  gentleman  from  Iowa,  and  — 

Mr.  HEPBURN.  You  will  not  offend  my  feelings,  sir,  by  answering  that 
question. 

Mr.  COOPER  of  Wisconsin.  I  will  then  say  to  the  gentleman  from 
Iowa 

Mr.  HEPBURN.    Name  them  out. 

Mr.  COOPER  of  Wisconsin.  I  am  not  going  to  name  a  man  who  came 
to  me  and  told  that  story.  The  gentleman  from  Iowa  is  one  of  the  men 
who  was  said  to  have  remarked  in  conversation  that  the  express  amend- 
ment will  go  out. 

Mr.  HEPBURN.  I  say  that  any  man  who  has  told  the  gentleman  that 
statement  stated  a  falsehood  [applause],  and  I  am  inclined  to  believe 
that,  until  the  name  of  that  individual  is  given,  the  gentleman  may  be 
drawing  upon  his  imagination.  [Applause.] 

Mr.  WILLIAMS.    Mr.  Speaker,  I  call  the  gentleman  from  Iowa  to  order. 

Mr.  HEPBURN.  Mr.  Speaker,  I  withdraw  the  language  that  is  offensive 
to  the  distinguished  gentleman  from  Mississippi. 

Mr.  WILLIAMS.  It  is  not  offensive  to  the  "  gentleman  from  Mississippi" 
at  all ;  it  is  offensive  to  the  House. 

The  SPEAKER.  The  language  is  withdrawn.  The  gentleman  from 
Pennsylvania  has  the  floor. 

Mr.  COOPER  of  Wisconsin.    Will  the  gentleman  yield? 

Mr.  DALZELL.    I  yield  to  the  gentleman  from  Wisconsin. 

Mr.  COOPER  of  Wisconsin.  Just  one  minute  to  reply  to  the  gentleman 
from  Iowa.  I  wish  to  say,  Mr.  Speaker,  to  the  gentleman  from  Iowa, 
that  I  am  not  the  only  person  to  whom  that  statement  has  been  made. 
There  are  other  members  of  the  House  to  whom  that  statement  has  been 
made.  There  is  no  object,  can  be  no  specific  purpose  on  my  part,  to 
deliberately  misstate  that 

Mr.  HEPBURN.    Will  the  gentleman  permit  me 

Mr.  COOPER  of  Wisconsin.  One  moment;  you  have  no  right  to 
interrupt  me  at  this  point. 

Mr.  WILLIAMS.    A  point  of  order,  Mr.  Speaker. 

Mr.  HEPRURN.    In  veiw  of  the  fact 

Mr.  WILLIAMS.    I  make  the  point  of  order,  Mr.  Speaker. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     193 

The  SPEAKER.  The  gentleman  from  Mississippi  makes  the  point  of 
order. 

Mr.  WILLIAMS.    The  gentleman  has  not  yielded. 

The  SPEAKER.  That  the  gentleman  has  not  yielded.  The  House  will 
be  in  order. 

Mr.  COOPER  of  Wisconsin.  I  can  not  understand  how  the  gentleman 
from  Iowa  ever  propounded  that  question,  unless  he  had  heard  that  this 
statement  was  going  around.  He  put  me  in  a  very  embarrassing  position. 
But  I  told  him  what  was  told  to  me;  I  told  exactly  the  truth  as  told  to 
me ;  and  this  is  the  first  time  that  any  man,  anywhere,  ever  accused  me 
of  deliberately  telling  a  falsehood.  This  is  a  thing  which  was  said  to  me 
in  confidence  in  a  conversation  I  had  with  a  gentleman  who  said:  "I 
would  not  like  my  name  mentioned  in  this  connection." 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  MURPHY.    Will  the  gentleman  allow  me  to  ask  him  a  question? 

Mr.  DALZELL.    I  yield  to  the  gentleman. 

Mr.  MURPHY.  Is  not  this  the  fact:  "It  is  manifest,  therefore,  that 
if  we  are  to  have  speedy  legislation  and  adjustment  of  the  differences 
between  the  two  Houses  the  bill  must  be  at  once  sent  to  conference,  and 
that  is  the  purpose  of  the  rule  I  have  introduced?" 

Mr.  DALZELL.    Undoubtedly. 

Mr.  MURPHY.  I  am  reading  from  the  remarks  of  the  gentleman  from 
Pennsylvania,  as  found  on  page  4224  of  the  Congressional  Record,  on  the 
rule  sending  the  statehood  bill  to  conference. 

Mr.  DALZELL.  Well,  now,  Mr.  Speaker,  I  say  that  this  is  a  very  simple 
matter.  That  bill  is  now  on  the  Speaker's  table  with  fifty  amendments. 
There  is  a  great  diversity  of  opinion  as  to  whether  a  number  of  these 
amendments  should  be  accepted  or  should  be  rejected,  but  whether  they 
shall  be  accepted  or  whether  they  shall  be  rejected  we  have  to  meet  this 
question.  With  the  gentleman  from  Mississippi  in  the  saddle,  and  with 
his  idea  of  statesmanship,  under  which  the  gentleman  ties  up  the  House 
by  opposition,  we  could  have  separate  votes  on  each  of  these  fifty  amend- 
ments to  the  bill.  It  is  entirely  within  the  power  of  the  House  to  vote 
upon  the  conferees'  report  and  refuse  to  accept  the  conference  report,  and 
then  the  whole  matter  will  be  open  and  within  the  control  of  the  member- 
ship of  this  House  to  amend  the  bill  until  it  is  in  just  such  shape  as  the 
majority  of  the  House  desire  to  have  it. 

The  SPEAKER.    The  gentleman  has  six  minutes  of  his  time  remaining. 

Mr.  DALZELL.    I  reserve  the  balance  of  my  time. 

Mr.  WILSON.    Will  the  gentleman  yield  to  a  question  ? 

Mr.  PAYNE.    The  gentleman  reserves  his  time. 

The  SPEAKER.    The  gentleman  from  Mississippi. 

Mr.  WILLIAMS.  Mr.  Speaker,  I  had  not  intended  just  at  this  moment 
to  say  anything,  but  the  gentleman  from  Pennsylvania  has  rendered  it 
necessary  that  I  should  before  I  yield  to  anybody  else.  As  I  understood 

13 


194  AMERICAN   FEDERAL   GOVERNMENT 

him,  he  tried  to  gather  partisan  strength  upon  that  side  by  asking  the 
question  "What  condition  this  bill  would  be  in  if  the  gentleman  from 
Mississippi,  with  his  revolutionary  methods,"  I  believe  was  the 
language 

Mr.  DALZELL.  I  did  not  say  "revolutionary  methods."  I  said  "with 
his  ideas  of  statesmanship." 

Mr.  WILLIAMS.  "Ideas  of  statesmanship,"  then.  I  want  to  quote  the 
gentleman  exactly  right  —  "if  the  gentleman  from  Mississippi,  with  his 
ideas  of  statesmanship,  were  put  in  the  saddle  by  voting  down  this  special 
rule?"  Why,  the  gentleman  from  Pennsylvania  is  not  such  a  child  as  to 
imagine  that  giving  the  House  a  right  to  vote  a  motion  to  concur  in  one  or 
more  of  these  Senate  amendments  would  "place  the  gentleman  from 
Mississippi  in  the  saddle."  He  knows  that  it  would  simply  place  the 
House  of  Representatives  in  the  saddle.  [Applause  on  the  Democratic 
side.]  And  the  gentleman  from  Pennsylvania,  moreover,  knew  from 
what  had  occurred  in  the  Committee  on  Rules  that  the  gentleman  from 
Mississippi  was  perfectly  willing,  if  only  there  were  an  opportunity  fur- 
nished to  the  House  to  vote  to  concur  upon  Senate  amendments,  2,  6,  31, 
47,  and  48,  that  all  the  balance  of  the  Senate  amendments  might,  without 
objection,  go  to  the  conference  as  amendments  nonconcurred  in.  Gentle- 
men, do  not  let  that  sort  of  thing  fool  you,  whatever  else  fools  you 

Mr.  DALZELL.  The  gentleman  from  Mississippi  certainly  does  not 
claim  that  the  House  is  to  be  bound  by  his  particular  wishes.  Other 
gentlemen  have  a  right  to  their  opinions  as  well  as  he. 

Mr.  WILLIAMS.  The  gentleman  from  Mississippi  does  not  claim  that 
the  House  would  be  bound,  but  the  gentleman  from  Mississippi  claims 
that,  so  far  as  his  position  is  concerned,  he  would  be  bound,  and  that 
therefore  there  was  no  reason  in  fact  or  in  truth  for  the  statement  made 
by  the  gentleman  from  Pennsylvania  to  the  effect  that  the  gentleman 
from  Mississippi  would  be  put  in  the  saddle.  The  House  would  be  put 
in  the  saddle,  and  that  is  what  the  gentleman  and  men  in  this  Hall  who 
are  opposed  to  the  Senate  amendment  putting  express  companies  in  the 
bill  as  common  carriers  and  to  some  other  amendments  of  the  Senate, 
in  which  this  House  upon  a  free  vote  would  concur  at  once ;  that  is  what 
they  are  trying  to  avoid.  You  want  the  Committee  on  Rules  and  the 
conferees  to  be  in  the  saddle  to  ride  the  House  bitted  and  spurred.  You 
do  not  want  the  House  to  be  in  the  saddle.  If  I  consented  right  now  that 
every  single  Democrat  should  leave  this  Hall,  and  that  no  point  Of  "no 
quorum"  should  be  made,  you  dare  not  put  even  that  side  of  the  House 
in  the  saddle  for  a  day.  [Applause  on  the  Democratic  side.] 

Now,  Mr.  Speaker,  I  yield  five  minutes  to  the  gentleman  from  Missouri 
[Mr.  De  Armond].  [Applause  on  the  Democratic  side.] 

Mr.  DE  ARMOND.  Mr.  Speaker,  the  question  before  the  House  is  at 
once  a  very  simple  and  a  very  important  one.  It  is  the  question  whether 
the  House  will  pass  upon  some  of  these  amendments  itself  or  whether  it 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     195 

will  commit  then  to  the  uncertainties  of  a  conference.  That  is  the  plain, 
simple  question. 

The  importance  of  this  legislation  or  of  the  subject  with  which  this 
legislation  deals  can  hardly  be  overstated. 

In  the  other  end  of  this  Capitol  weeks  and  months  were  spent  in  dis- 
cussion and  consideration  of  this  measure.  A  number  of  amendments 
were  added  to  it.  Some  of  them,  I  am  sure,  should  meet  with  the  hearty 
concurrence  and  approval  and  indorsement  of  every  man  in  this  House, 
and  of  every  man  out  of  this  House  who  wishes  effective  railroad  rate 
legislation.  As  has  already  been  suggested  by  the  gentleman  from 
Mississippi  [Mr.  Williams],  my  colleague  on  the  Committee  on .  Rules, 
so  far  as  we  upon  this  side  are  concerned,  I  believe  that  with  a  vote  now 
upon  two  or  three  or  four  or  five  of  these  amendments,  it  would  be  satis- 
factory to  us  to  let  the  others  go  to  conference,  if  that  be  insisted  upon. 
What  are  they  ?  They  are  very  easily  understood.  One  is  amendment 
No.  2,  that  the  term  "common  carrier"  shall  include  express  companies 
and  sleeping-car  companies.  [Applause.]  Now,  a  man  ought  to  know 
whether  he  is  for  that  or  against  it.  We  are  for  it.  I  believe  the  House  is 
for  it.  If  so,  why  send  it  to  conference  ?  Why  .take  the  chance  or  the 
risk  of  what  may  be  done  in  conference  concerning  it?  The  man  who 
votes  against  giving  himself  the  opportunity  to  vote  upon  that  amendment 
here  in  the  House  now,  for  the  time  being  votes  against  it  and  takes  the 
chance  of  having  or  not  having  the  opportunity  to  vote  for  it  later,  if  he 
really  wishes  to  vote  for  it  at  all. 

Now,  take  amendment  No.  6.  That  provides  that  common  carriers 
shall  furnish  switch  facilities.  Who  is  in  favor  of  that,  and  who  is  against 
it  ?  We  are  in  favor  of  it.  I  believe  the  House  is  in  favor  of  it.  Why 
not  let  us  determine  by  vote  here?  Why  send  it  to  a  conference  com- 
mittee, with  its  hazards  and  its  chances,  in  the  closing  days  of  a  session 
to  determine  whether  or  not  that  wholesome  and  just  amendment  shall 
remain  in  the  bill  and  become  a  part  of  the  law  ? 

Take  amendment  No.  31.  It  strikes  out  the  words  "fairly  remunera- 
tive"; a  catch  trap  those  words  are,  making  room  for  litigation,  room 
for  uncertainty,  room  for  thwarting,  if  possible,  the  will  of  the  people 
with  respect  to  this  bill.  Why  not  vote  upon  that  ?  We  are  in  favor  of 
the  amendment  which  strikes  those  words  out. 

No.  47  provides  that  there  shall  not  be  incorporated  in  the  receipt  or 
bill  of  lading  any  words,  however  carefully  chosen  or  however  skillfully 
covered,  which  will  exempt  the  railroad  company  from  its  ordinary 
common-law  liability.  [Applause.]  Who  is  in  favor  of  that,  and  who  is 
against  it  ?  We  are  in  favor  of  that  amendment.  It  is  not  onerous  on  the 
railroads,  it  is  not  unjust,  it  is  not  rash ;  it  is  decent  and  fair  and  correc- 
tive and  improving  in  this  bill.  We  are  in  favor  of  it.  I  believe  the 
House  is  in  favor  of  it.  Why  commit  to  the  chances  and  hazard  of  this 
committee  performance  that  amendment? 


196  AMERICAN  FEDERAL   GOVERNMENT 

Then  there  is  an  amendment,  No.  48,  which  strikes  out  the  section  in 
the  bill  when  it  went  from  this  House,  unnecessarily  providing  that  each 
of  the  Interstate  Commerce  Commissioners  shall  receive  $10,000  a  year 
instead  of  $7,500,  and  that  there  shall  be  seven  instead  of  five  Commis- 
sioners. I  would  like  to  see  a  vote  upon  that,  and  would  like  to  vote  for  it. 

But  are  you  willing  to  give  us  a  vote  upon  anything?  Are  you  willing 
yourselves  to  vote  upon  anything  ?  Or  are  you  in  favor  of  turning  over 
every  amendment,  no  matter  how  important,  to  the  hazard,  and  juggling, 
and  chances,  and  uncertainty,  and  the  influence  that  may  prevail  against 
fair  consideration,  in  this  committee  of  conference  ?  That  is  the  question, 
and  nothing  can  take  us  away  from  it.  A  vote  upon  the  one  side  is  a  vote 
to  give  this  House  an  opportunity  to  do  what  it  chooses  to  do,  and  a  vote 
upon  the  other  side  is  to  deny  it.  [Applause  on  the  Democratic  side.] 

The  SPEAKER.    The  gentleman's  time  has  expired. 

Mr.  KLEPPER.  Mr.  Speaker,  I  ask  unanimous  consent  that  the 
gentleman's  time  be  extended  one  minute  that  I  may  ask  him  a  question. 

Mr.  DE  ARMOND.    That  is  perfectly  satisfactory  to  me. 

The  SPEAKER.  The  gentleman  from  Missouri  asks  that  his  colleague's 
time  be  extended  one  minute. 

Mr.  WILLIAMS.    That  is  in  addition  to  the  usual  forty  minutes? 

The  SPEAKER.    Yes;  is  there  objection? 

Mr.  PAYNE.    What  is  the  question,  Mr.  Speaker? 

The  SPEAKER.  The  gentleman  from  Missouri  asks  that  his  colleague's 
time  be  extended  one  minute  to  answer  a  question. 

Mr.  PAYNE.    That  is  in  addition  to  the  forty  minutes? 

The  SPEAKER.    Yes. 

Mr.  OLMSTED.  .Then,  one  minute  ought  to  be  added  to  the  time  for 
debate  on  this  side. 

The  SPEAKER.    The  Chair  hears  no  objection. 

Mr.  KLEPPER.  I  want  to  ask  my  colleague  if  it  is  not  a  fact  that  quite 
a  number  of  the  minority,  including  the  leader  of  the  minority,  did  not 
vote  to  exclude  express  companies  on  the  passage  of  the  bill  in  the  House, 
and  if  that  be  true,  .why  they  are  agonizing  over  this  subject  and  objecting 
to  its  going  to  conference  ? 

Mr.  DE  ARMOND.  Mr.  Speaker,  I  am  asked  a  question  as  to  what 
somebody  else  did,  and  somebody  else  thought,  and  about  what  some- 
body else  thinks  now.  That  kind  of  a  question  I  can  not  answer,  but  I 
will  say  to  the  gentleman  that  when  he  or  any  other  man  votes  to  send 
this  to  conference  without  an  opportunity  to  vote  upon  it,  he  votes  for 
excluding  from  this  classification  the  express  companies  and  the  car 
companies. 

Mr.  KLEPPER.  I  will  say  to  the  gentleman  that  I  voted  to  include 
express  companies,  and  if  I  remember  correctly  the  minority  leader  voted 
to  exclude  express  companies.  I  for  one  am  willing  to  submit  the  matter 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     197 

to  the  conferees,  believing  that  they  will  recommend  that  which  is  just 
and  proper. 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  DE  ARMOND.  I  hope  I  will  have  an  opportunity  to  answer  the 
gentleman. 

Mr.  WILLIAMS.  I  will  yield  to  the  gentleman  from  Alabama  [Mr. 
Underwood]  three  minutes. 

Mr.  UNDERWOOD.  Mr.  Speaker,  the  condition  of  this  proposition 
under  the  rule  is  this :  The  rate  bill  is  on  the  table,  and  the  rules  of  this 
House  provide  that  House  bills  with  Senate  amendments,  which  do  not 
require  to  be  considered  in  Committee  of  the  Whole,  may  be  at  once  dis- 
posed of  as  the  House  may  determine.  It  is  now  in  the  power  of  the 
gentleman  from  Iowa  [Mr.  Hepburn]  to  call  the  rate  bill  from  the  table, 
and  the  House  to  consider  each  of  these  amendments  without  a  special 
rule,  where  the  House  will  be  able  to  vote  up  or  down  each  of  the  amend- 
ments, as  it  deems  best  in  its  judgment.  The  effect  of  this  special  rule  is 
to  take  that  power  away  from  the  membership  of  the  House,  put  it  in 
the  hands  of  the  conferees,  composed  of  three  members  of  the  House 
and  three  members  of  the  Senate,  sitting  behind  closed  doors,  where 
nobody  in  this  House  or  nobody  in  the  United  States  can  know  what  is 
being  done,  and  when  they  come  back  with  their  report,  if  it  is  a  full  and 
complete  report,  such  as  they  will  bring  to  this  House,  the  membership 
of  the  House  will  be  confronted  with  the  question,  Will  you  accept  the 
bill  as  it  is  reported  from  the  committee  of  conference  or  not  ?  We  will 
have  to  swallow  their  report  whole,  good  or  bad,  or  be  put  in  the  attitude 
of  voting  against  a  rate  bill,  and  if  the  majority  passes  it  in  that  shape, 
there  will  be  no  explanation.  When  this  matter  was  before  the  House  of 
Representatives  I  moved  in  the  House  to  include  express  companies 
within  the  terms  of  the  bill.  The  gentleman  from  Iowa  [Mr.  Hepburn], 
the  chairman  of  the  committee,  and  the  chairman  of  the  conference 
committee  of  this  House  when  it  is  appointed,  fought  that  proposition 
and  said  the  Hepburn  bill  did  not  include  express  companies  and  he  was 
not  in  favor  of  putting  them  in  the  bill.  [Applause  on  the  Democratic 
side.]  I  say  to  this  House,  if  you  are  honestly  and  earnestly  in  favor 
of  putting  these  express  companies  within  the  terms  of  the  bill,  are  you 
going  to  put  that  in  the  hands  of  the  gentleman  from  Iowa  [Mr.  Hepburn], 
who  openly  and  aboveboard  has  told  you  on  the  floor  of  this  House,  when 
this  bill  was  last  before  it,  that  he  was  not  in  favor  of  the  proposition  ? 
Can  you  justify  yourselves  before  your  constituents  in  such  circumstances. 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  WILLIAMS.  Mr.  Speaker,  I  would  ask  the  gentleman  from 
Pennsylvania  if  he  proposes  to  use  the  balance  of  his  time  in  one  speech  ? 

The  SPEAKER.  The  gentleman  from  Mississippi  has  eight  minutes 
remaining  and  the  gentleman  from  Pennsylvania  has  six  minutes 
remaining. 


198  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  WILLIAMS.  Of  the  eight  minutes,  I  yield  two  minutes  to  the 
gentleman  from  Wisconsin  [Mr.  Cooper]. 

Mr.  COOPER  of  Wisconsin.  Mr.  Speaker,  in  line  with  what  the  gentle- 
man from  Alabama  [Mr.  Underwood]  has  just  said,  I  would  also  beg  to 
remind  the  House  that  while  the  original  bill  was  pending  here  an  amend- 
ment was  offered  by  the  gentleman  from  Alabama  [Mr.  Underwood]  and 
one  or  two  others  —  there  were  two  or  three  amendments  —  putting 
express  companies  within  the  purview  of  this  bill.  The  gentleman  from 
Iowa  [Mr.  Hepburn]  had  said  to  the  House  that  express  companies  were 
not  included  in  the  bill.  The  gentleman  from  Michigan  [Mr.  Townsend] 
thought  they  were,  as  did  also  my  colleague  [Mr.  Esch],  the  gentleman 
from  Wisconsin.  In  my  remarks  I  called  attention  to  the  fact  that  the 
phraseology  of  the  bill  did  not  include  express  companies,  unless  the 
original  act  included  them,  and  that  the  Interstate  Commerce  Commis- 
sion had  always  held  that  express  companies  were  not  included  under  the 
original  act.  I  called  attention  also  to  the  fact  that  a  member  of  the 
Interstate  Commerce  Commission,  with  whom  I  had  had  a  conversation 
on  that  day,  told  me  that  there  was  no  question  that  express  companies 
were  not  included  under  the  terms  of  the  then  pending  bill.  When  the 
amendment  to  include  express  companies  came  up,  the  gentleman  from 
Iowa  [Mr.  Hepburn]  voted  against  it,  in  line  with  the  remarks  which  he 
made,  as  just  narrated  by  the  gentleman  from  Alabama  [Mr.  Underwood]. 
Now,  why  should  any  gentleman  who  wants  express  companies  included 
and  who  wants  to  stop  the  infamous  discriminations  which  they  now 
practice,  vote  to  turn  the  whole  question  over  to  conferees  to  bring  in 
such  a  report  as  they  please?  Gentlemen  are  not  obliged  to  do  this. 
The  rules  do  not  require  it.  How  can  any  gentleman  who  honestly  does 
not  wish  to  have  express  companies  omitted  from  the  law  vote  to  send 
this  proposition  to  a  conference  that  may  be  hostile  to  his  views  ?  When 
are  you  to  get  the  report  —  in  two  weeks,  three  weeks,  four  weeks  ? 
What  will  it  contain? 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  WILLIAMS.  Mr.  Speaker,  the  gentleman  from  Missouri  [Mr.  De 
Armond]  has  already  outlined  what  amendments  2,  6,  31,  47,  and  48  are. 
These  are  the  amendments  which  we  as  minority  members  of  the  Com- 
mittee on  Rules  asked  that  the  House  should  have  a  right  to  vote  upon 
in  a  motion  to  concur.  We  still  insist  on  that  right.  We  therefore  oppose 
this  rule.  It  is  very  true  that  I  did  vote  against  amendments  like  this, 
some  of  them  almost  identical  with  them,  upon  the  floor,  but  it  was 
because  —  and  the  gentleman  from  Iowa  [Mr.  Hepburn]  will  bear  me 
out  in  that  statement  —  for  tactical  and  strategic  purposes  we  had 
thought  it  important  to  send  this  rate  bill,  with  all  the  weight  and  influ- 
ence of  this  House,  like  a  catapult  against  the  other  side  of  this  Capitol, 
so  that  the  utmost  influence  might  be  had  to  bring  forth  a  bill.  It  was 
not  because  there  was  ever  a  minute  of  my  life  when  I  or  a  majority  of 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     199 

the  Democrats  on  this  side  were  not  in  favor  of  these  propositions  em- 
bodied in  the  Senate  amendments.  I  will  answer  the  question  the  gen- 
tleman from  Missouri  [Mr.  Klepper]  asked  his  colleague  [Mr.  De 
Armond].  The  gentleman  from  Mississippi  voted  against  all  amendments 
to  the  Hepburn-Davey  House  rate  bill  because  he  was  in  honor  bound  to 
stand  by  the  bill  as  it  had  been  agreed  upon  and  to  vote  against  all 
amendments,  and  on  that  day  I  and  a  majority  of  us  over  here  voted 
against  half  a  dozen  amendments  that  we  were  in  favor  of,  as  everybody 
knew.  It  may  probably  be  difficult  for  the  gentleman  to  understand,  but 
not  difficult  for  a  Democrat  to  understand,  that  a  man  may  do  that  which 
he  otherwise  does  not  want  to  do  in  order  to  keep  faith  and  in  order  to 
keep  honor,  and  the  six  Democratic  members  of  the  committee  and  I  did 
exactly  that  thing.  What  was  the  result?  We  did  bring  the  weight  of 
this  House  like  a  catapult  to  bear,  with  the  President  and  public  opinion 
behind  that  catapult,  as  well  as  ourselves,  and  Senators  fell  over  them- 
selves in  order  to  out-Herod  Herod  in  giving  us  what  we  and  what  the 
people  wanted  and  what  we  had  feared  that  a  majority  of  the  Senate  did 
not  want.  There  was  no  mistake  made  when  for  tactical  purposes  we 
came  together  in  a  nonpartisan  bill,  and  the  Republicans  adopted  in  the 
bill  several  things  which  they  did  not  want,  and  we  left  out  of  the  bill 
several  things  which  we  did  want,  and  keeping  faith  with  one  another  as 
men  of  honor  should,  we  stood  by  the  bill,  I  and  the  six  Democratic 
members  of  the  Committee  on  Interstate  and  Foreign  Commerce.  Mr. 
Speaker,  this  has  come  back  a  better  bill  than  it  went  out,  and  we  want 
to  keep  it  good.  It  has  been  said  —  I  know  not  with  how  much  truth  — 
that  when  these  amendments  were  being  adopted  it  was  whispered  at  the 
other  end  of  the  Capitol,  "Oh,  that  is  all  right;  let  it  go;  the  conferees 
will  take  care  of  that." 

Now,  I  do  not  want  the  conferees  to  take  care  of  it.  Voting  down  this 
rule  is  the  first,  perhaps  the  only,  opportunity  to  concur  upon  these  five 
propositions,  2,  6,  31,  47,  and  48,  and  to  drive  a  nail  through  the  plank 
and  clinch  it  on  the  other  side.  Gentlemen  say  they  want  something  in 
conference  "to  trade  upon."  Well,  I  do  not  want  them  to  trade  about 
either  one  of  those  five  amendments ;  neither  does  this  House  of  Repre- 
sentatives want  them  to  do  it.  They  all  say  so.  There  are  many  who 
say  they  would  vote  to  concur;  if  so,  why  not  do  it  now?  I  may  be 
excused  for  not  being  able  to  understand  a  man  who  says  he  is  in  favor 
of  a  proposition  and  then,  when  the  opportunity  is  offered  to  him  to  make 
that  proposition  irrevocably  good  upon  the  statute  books,  refuses  the 
opportunity.  The  gentleman  from  Pennsylvania  says  that  the  House 
will  have  "an  opportunity"  later  on  "to  vote."  Will  the  House  have  it? 
j  Who  knows  it  ?  Will  or  will  there  not  be  another  rule  to  gag  the  House  ? 
Why,  you  know  there  will  be  another  rule,  provided  only  that  the  gentle- 
man from  Iowa  [Mr.  Hepburn]  and  the  Committee  on  Rules  desire  to 
have  another  rule.  It  is  true  the  House  might  at  that  time  vote  down  the 


200  AMERICAN   FEDERAL   GOVERNMENT 

second  rule,  but  the  House  might  at  this  time  vote  down  this  rule ;  and 
if  in  blind  partisanship  it  will  avoid  the  first  opportunity  to  do  what  it 
says  it  wants  to  do,  what  reason  have  we  to  believe  it  would  avail  itself  of 
it  in  the  second  case  ?  This  is  your  first  chance ;  take  advantage  of  it. 
The  next  chance  will  be  the  Aldrich  chance.  Now,  there  are  only  two 
possible  reasons  why  the  House  shall  not  be  given  an  opportunity  to 
vote  to  concur  upon  the  five  Senate  amendments,  the  character  of  which 
has  been  outlined  by  the  gentleman  from  Missouri.  One  is  that  some- 
body may  want  to  imitate  the  game  that  was  played  at  the  other  end  of 
the  Capitol.  At  the  last  moment,  after  having  used  patriotic  Representa- 
tives as  a  lever  to  procure  the  desired  legislation  —  to  keep  the  fight 
alive  —  they  at  the  last  moment  attempted  to  put  the  stamp  of  partisan- 
ship upon  a  great  measure,  which  was  advocated  first  by  the  Democrats, 
and  which  is  more  earnestly  favored  by  them  now  than  by  any  other 
people.  That  may  be  one  reason,  and  the  next  reason  would  be  to  leave 
the  final  moulding  of  a  bill  to  the  uncertainty  and  secrecy  of  conferees, 
through  whom  these  amendments  might  be  killed,  scotched,  or 
emasculated. 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  GROSVENOR.    I  yield  one  minute  to  the  gentleman  from  Iowa. 

Mr.  DALZELL.  I  yield  the  balance  of  my  time  to  my  colleague  [Mr. 
Grosvenor]. 

Mr.  HEPBURN.  Mr.  Speaker,  I  simply  desire  to  say,  for  a  moment, 
that  I  agree  entirely  with  the  gentleman  from  Mississippi  in  the  suggestion 
that  the  vote  upon  any  one  of  these  amendments  that  were  offered  in  this 
House  to  the  bill  when  it  was  under  consideration  does  not  indicate  the 
views  that  the  individual  voting  might  have  upon  the  subject.  It  will  be 
remembered  that  it  was  the  effort  of  the  Committee  on  Interstate  and 
Foreign  Commerce  to  report  to  the  House  a  bill  that  would  embody  the 
recommendations  of  the  President  and  place  them  into  law  —  that  much 
and  nothing  more.  Everything  else  beyond  that  was  opposed  by  the 
committee.  There  was  an  agreement  of  the  entire  eighteen  members  of 
the  committee  that  they  would  oppose  any  amendment  and  strive  to 
secure  the  bill  as  reported.  The  gentleman  from  Mississippi,  patriotic 
in  his  anxiety  to  get  such  a  bill  as  the  President  had  asked  for,  united 
with  us  in  that  purpose,  and  in  accordance  with  the  plan  every  one  of 
the  amendments  was  voted  down,  without  regard  to  the  individual  views 
of  us  who  voted  against  them.  [Applause.] 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  WILLIAMS.    Mr.  Speaker  — 

The  SPEAKER.    For  what  purpose  does  the  gentleman  rise  ? 

Mr.  WILLIAMS.  For  the  purpose  of  calling  the  attention  of  the  House 
to  the  fact  the  gentleman  from  Pennsylvania  said  he  would  close  in  one 
speech. 

Mr.  DALZELL.  I  yielded  my  time  to  the  gentleman  from  Ohio  and  I 
assumed  that  he  would  use  the  time. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     201 

Mr.  WILLIAMS.    You  also  yielded  to  the  gentleman  from  Iowa. 

Mr.  DALZELL.  No,  sir;  the  gentleman  from  Ohio  yielded  to  the 
gentleman  from  Iowa. 

Mr.  WILLIAMS.    I  just  want  the  record  to  show  the  occurrence. 

Mr.  GROSVENOR.  Mr.  Speaker,  I  think  it  is  rather  unbecoming  of 
the  gentleman  to  quibble  about  a  minute's  time  being  yielded  to  the 
gentleman  from  Iowa,  who  has  been  so  bitterly  assailed  here  on 
the  floor,  to  explain  his  position.  Now,  Mr.  Speaker,  the  situation  is 
practically  this:  The  organization  of  this  House  is  responsible  for  the 
progress  and  despatch  of  business.  We  have  a  bill  here  with  fifty-one 
amendments.  We  have  a  gentleman  on  the  other  side  who  is  supreme  in 
the  minority,  with  power  enough  to  demand  the  yeas  and  nays  upon 
every  question,  who  can  take  this  bill  and  upon  these  fifty-one  amend- 
ments could  occupy  the  time  of  the  House  for  six  days  and  a  half 
by  the  call  of  the  roll.  And  he  has  not  for  a  long  time  failed  to  demand  a 
call  of  the  roll  whenever  he  has  had  an  opportunity.  Now,  I  respectfully 
submit  to  gentlemen  on  this  side  if  it  is  not  about  time  that  the  Republican 
majority  of  this  House  should  take  possession  of  the  House  and  transact 
its  business  on  its  own  hook  and  in  its  own  way,  or  is  it  wise  to  turn  over 
to  a  faction,  full  of  the  idea  of  filibustering  as  a  remedy  for  its  minority, 
the  future  of  this  important  legislation  ? 

Mr.  WILLIAMS.    Will  the  gentleman  permit  an  interruption  ? 

Mr.  GROSVENOR.  I  do  not  know  what  for.  I  do  not  intend  that  the 
gentleman  shall  make  any  more  speeches. 

Mr.  WILLIAMS.  I  do  not  intend  to  make  a  speech.  May  I  ask  the 
gentleman  a  question? 

Mr.  GROSVENOR.    Ask  it. 

Mr.  WILLIAMS.  Would  the  gentleman  consent  to  permit  these  six 
amendments  to  be  voted  upon  by  the  House  if  I  repeated  here  what  I  had 
offered  to  do  in  the  Committee  on  Rules,  to  wit,  to  give  unanimous  con- 
sent that  the  balance  should  be  nonconcurred  in  and  go  to  conference  ? 

Mr.  GROSVENOR.  I  am  not  willing  that  the  Republican  majority  of 
this  House  shall  waive  their  prerogative  and  turn  it  over  to  the  gentleman 
from  Mississippi.  [Applause  on  the  Republican  side.]  We  have  had 
enough  of  that.  If  we  are  coming  out  of  this  session  of  Congress  with 
any  self-respect,  let  alone  the  respect  of  the  country,  it  is  time  we  at- 
tempted to  do  business  ourselves  and  not  permit  other  gentlemen  to 
dictate  to  us.  And  then  —  just  think  of  it,  gentlemen.  Here  is  the 
minority,  representing  about  125  votes,  and  the  gentleman  from  Missis- 
sippi stands  up  calmly  and  deliberately  and  picks  out  the  amendments  he 
wants  to  vote  upon,  and  demands  that  his  dictation  shall  be  heard  by  the 
House,  and  when  it  is  not  heard,  then  he  pours  out  the  vials  of  his  wrath 
here.  Now,  let  us  proceed  in  an  orderly  way,  just  as  we  have  done  a 
hundred  times  in  the  memory  of  many  of  us  —  disagree  to  all  of  the 
amendments  and  send  the  bill  to  conference. 


202  AMERICAN   FEDERAL   GOVERNMENT 

The  gentleman  from  Wisconsin  [Mr.  Cooper]  is  certainly  seeking  a 
point  of  attack.  This  House  has  the  power  to  bring  back  the  members 
of  that  committee  at  any  time  it  sees  fit  to  do  so.  We  are  not  in  the 
hands  either  of  the  Democratic  minority  or  in  the  hands  of  a  conference 
committee.  Is  there  any  man  here  who  by  his  vote  will  doubt  that  that 
conference  committee  will  at  a  very  early  date  report  this  important  bill 
back?  And  let  me  make  a  statement,  Mr.  Speaker,  and  I  ask  the 
House  to  hear  what  I  say  and  measure  my  language  —  when  that 
conference  report  comes  back  there  will  be  a  chance  to  vote  on  every 
amendment  the  House  desires  to  vote  upon,  and  there  will  be  debate,  and 
for  once  in  my  life  I  think  I  occupy  a  position  where  I  can  enforce  the 
suggestion  which  I  have  made.  But  I  desire  to  disclaim  on  the  part  of 
the  majority  of  the  Committee  on  Rules  the  slightest  intention  of  gagging 
the  bill  through  this  House.  Many  of  us  are  strongly  in  favor  of  the  very 
amendments  that  the  gentleman  from  Mississippi  [Mr.  Williams]  has 
spoken  about,  and  you  have  all  heard  the  explanation  made  by  the 
gentleman  himself  that  entirely  exonerates  the  gentleman  from  Iowa 
[Mr.  Hepburn]  from  having  placed  himself  in  a  position  of  hostility  to 
the  particular  amendment  which  the  gentleman  has  seen  fit  to  point  out. 
He  voted  against  any  amendment,  and  I  can  go  a  little  further  and  say 
that  he  appealed  to  me  not  to  offer  an  amendment  that  I  had  prepared, 
and  which  would  have  made  this  bill,  in  my  humble  judgment,  far  better 
than  it  was  when  it  left  the  House,  and  I  refrained  from  offering  it  simply 
and  solely  for  the  purpose  of  aiding  the  passage  of  the  bill  and  getting  it 
into  the  hands  ultimately  of  the  committee  of  conference. 

The  committee  may  go  out  and  agree  or  disagree  on  certain  points  and 
come  back  again.  I  recollect  very  well  that  on  a  certain  night  here  we 
voted  down  a  conference  report  five  times,  and  stayed  here  until  nearly 
morning,  and  ultimately,  upon  the  demand  made  by  the  House,  we  saved 
the  Government  of  the  United  States  from  the  disgrace  of  having  to 
report  for  duty  to  a  vagabond  crowd  in  the  island  of  Cuba.  I  hope  the 
committee  will  be  sustained  in  this  report. 

The  SPEAKER.    The  question  is  on  agreeing  to  the  resolution. 


THE  ARMY   APPROPRIATION   BILL,    1902 1 

Mr.  CANNON.  Mr.  Speaker,  in  the  five  minutes'  time  I  can  only 
refer  to  one  or  two  matters  that  my  attention  has  been  directed  to. 
This  appropriation  for  barracks  and  quarters  makes  $2,000,000,  and 
$250,000  in  addition,  immediately  available  in  the  Philippines,  and  con- 
tains some  other  immediately  available  provisions.  In  other  words, 
between  two  and  three  million  dollars  —  nearer  three  millions  than 

1  Congr.  Record,  XXXVI,  2347. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES    203 

two  millions  —  are  made  immediately  available.  This  is  an  appropria- 
tion bill  for  the  coming  year  and  a  deficiency  bill  for  this  year.  How 
much  more  may  be  in  this  bill,  how  much  more  in  other  bills  I  do  not 
know;  but  I  do  know  that  this  practice  of  going  from  committee  to 
committee  under  the  rules  of  the  House  has  jurisdiction,  and  then, 
before  the  matter  has  been  investigated,  by  the  aid  of  a  willing  Senate, 
failing  in  one  place,  rushing  to  another  that  has  not  jurisdiction,  and 
sticking  in  amendments  here  and  there  and  yonder  ought  to  be  done 
away  with.  Appropriation  for  the  next  year,  appropriation  for  this 
year,  legislation  here,  legislation  there.  If  action  is  continued  along 
these  lines  it  will  demoralize  the  matter  of  appropriation  and  bring 
scandal  and  criticism  —  deserved  criticism  —  from  the  people  of  the 
country. 

Now,  touching  this  retirement  matter,  I  do  not  know  whether  it  is 
right  or  not.  I  want  to  treat  the  Army  liberally.  This  provision  had 
no  place  in  the  House  bill ;  it  is  legislation  pure  and  simple,  on  a  large 
scale,  by  Senate  amendment.  How  does  it  come  here  ?  In  a  conference 
agreement,  by  the  grace  of  the  Senate  —  wholesale.  I  should  be  glad 
if  every  member  here  who  thinks  he  understands  this  provision  would 
stand  up.  These  matters  ought  to  be  treated  of  upon  their  merits.  If 
I  vote  for  this  conference  report  on  this  great  bill  to  supply  the  public 
service,  I  am  compelled  to  vote  for  a  bill  that  supplies  that  service  for 
the  next  year  as  well  as  for  this  year,  a  bill  that  amends  the  law  and 
introduces  a  new  policy  touching  the  retired  list.  It  may  be  justifiable ; 
I  do  not  know.  I  have  got  to  take  it  upon  trust.  In  this  body,  close  to 
the  people,  we  proceed  under  rules.  In  another  body  —  and  I  think 
I  can  say  it  within  parliamentary  lines  —  legislation  is  by  unanimous 
consent.  And  when  I  say  that,  gentlemen  understand  what  it  means. 
[Applause.] 

Mr.  RICHARDSON  of  Tennessee.  Mr.  Speaker,  the  House  is  put  at 
a  very  great  disadvantage  when  we  come  to  vote  upon  a  conference 
report  if  we  are  not  satisfied  in  the  House  with  amendments  that  have 
been  put  upon  the  bill  by  the  Senate.  It  seems  that  in  this  case  the 
Senate  put  upon  this  bill  certain  amendments  which  are  obnoxious  to 
our  rules.  As  has  been  stated  by  the  gentleman  from  Illinois  [Mr. 
Cannon],  the  legislative  provisions  that  they  have  put  upon  this  bill 
would  have  no  standing  under  our  rules  if  proposed  here.  Now,  when 
that  has  been  done  and  the  bill  comes  back  to  us  from  the  Senate,  we 
ought  to  have  the  right  to  vote  as  an  independent  matter  upon  every 
such  proposition  presented  to  us,  and  should  not  be  required  to  vote 
upon  various  propositions  as  a  whole  in  a  conference  report. 

Now,  we  have  not  that  permission,  we  have  not  that  privilege.  And 
why  ?  I  undertake  to  say  of  the  statement  of  the  gentleman  from  Iowa 
[Mr.  Hull],  whether  he  meant  to  do  it  or  not,  he  has  misled  the  House 
of  Representatives.  I  do  not  believe  the  gentleman  from  Iowa  would 


204  AMERICAN   FEDERAL   GOVERNMENT 

intentionally  mislead  the  House,  but  that  is  the  effect  of  the  action  that 
we  are  now  taking.  And  why  do  I  say  it?  Because  when  this  bill 
came  from  the  Senate  with  Senate  amendments  the  gentleman  from 
Iowa,  the  chairman  of  the  Military  Committee,  as  it  was  his  duty  to 
do,  asked  of  the  House  unanimous  consent  to  nonconcur  in  the  Senate 
amendments.  He  could  not  have  nonconcurred  and  sent  the  bill  to 
conference  without  unanimous  consent  of  this  House,  and  he  was  held 
up,  as  we  all  know,  on  that  request  upon  a  promise,  almost  expressed, 
certainly  implied,  that  we  should  have  the  right  to  vote  upon  the  Senate 
amendments.  We  are  denied  that  right  unless  we  vote  down  the  con- 
ference report.1 

MR.  CANNON'S    REMONSTRANCE,   1903 2 

[In  connection  with  the  South  Carolina  claim  forced  upon  the  Senate  by 
Senator  Tillman.] 

GENTLEMEN  know  that  under  the  practice  of  the  House  and  under 
the  rules  of  the  Senate  the  great  money  bills  can  contain  nothing  but 
appropriations  in  pursuance  of  existing  law,  unless  by  consent  of  both 
bodies.  If  any  one  of  these  bills  contains  legislation,  it  must  be  by  the 
unanimous  consent  of  the  two  bodies;  and  the  uniform  practice  has 
been,  so  far  as  I  know,  the  invariable  practice  has  been,  with  the  ex- 
ception of  one  amendment  upon  this  bill,  that  when  one  body  objected 
to  legislation  proposed  by  the  other  upon  an  appropriation  bill,  the 
body  proposing  the  legislation  has  receded.  .  .  . 

The  House  conferees  objected,  and  the  whole  delay  has  been  over 
that  one  item.  In  the  House  of  Representatives,  without  criticizing 
either  side  or  any  individual  member,  we  have  rules,  sometimes  invoked 
by  our  Democratic  friends  and  sometimes  by  ourselves  —  each  respon- 
sible to  the  people  after  all  said  and  done  —  by  which  a  majority,  right 
or  wrong,  mistaken  of  otherwise,  can  legislate. 

In  another  body  there  are  no  such  rules.  In  another  body  legislation 
is  had  by  unanimous  consent.  In  another  body  an  individual  member 
of  that  body  can  rise  in  his  place  and  talk  for  one  hour,  two  hours,  ten 
hours,  twelve  hours.  .  .  . 

.  .  .  Your  conferees,  were  unable  to  get  the  Senate  to  recede 'upon 
this  gift  from  the  treasury  against  the  law,  to  the  state  of  North  Caro- 
lina. By  unanimous  consent  another  body  legislates,  and  in  the  expir- 
ing hours  of  the  session  we  are  powerless  without  that  unanimous 
consent.  .  .  . 

1  It  may  be  noted  that  it  is  quite  common  for  committee  chairmen  to  state  that 
there   will   be   a  chance  for  the  discussion  of  individual  amendments  later,  but  that 
chance  rarely  comes. 

2  Congr.  Record,,  March  3,  1903. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES    205 

Gentlemen,  I  have  made  my  protest.  I  do  it  in  sorrow  and  in  hu- 
miliation, but  there  it  is ;  and  in  my  opinion  another  body  under  these 
methods  must  change  its  methods  of  procedure,  or  our  body,  backed 
up  by  the  people,  will  compel  that  change,  else  this  body,  close  to  the 
people,  shall  become  a  mere  tender,  a  mere  bender  of  the  pregnant 
hinges  of  the  knee,  to  submit  to  what  any  one  member  of  another  body 
may  demand  of  this  body  as  a  price  for  legislation. 


THE   CURRENCY   BILL    OF    1908 J 

THE  SPEAKER.    There  is  a  motion  before  the  House  to  suspend  the 
rules,  and  the  Clerk  will  read. 
The  Clerk  read  as  follows: 

Resolved,  That  after  the  adoption  hereof  the  Committee  on  Banking  and 
Currency  shall  be  discharged  and  the  House  shall  proceed  to  the  consideration 
of  H.  R.  21871,  "A  bill  to  amend  the  national  banking  laws ;"  debate  thereon 
shall  be  concluded  at  not  later  than  5  o'clock  P.  M.  to-day,  the  time  to  be  equally 
divided  between  the  friends  and  the  opponents  of  the  bill,  to  be  controlled  on 
one  side  by  Mr.  VREELAND  and  on  the  other  by  Mr.  WILLIAMS.  It  shall  be  in 
order  to  offer  in  lieu  of  the  bill  H.  R.  21871  a  substitute,  namely,  H.  R.  16730, 
"A  bill  to  further  protect  depositors  in  banks,  to  secure  a  safe  and  elastic 
emergency  currency,  and  to  amend  the  national-bank  act  and  previous  amend- 
ments thereto."  On  the  conclusion  of  the  debate  as  herein  provided,  a  vote  shall 
be  taken  without  delay  or  intervening  motion,  first  on  the  question  of  sub- 
stituting H.  R.  16730,  if  said  bill  shall  have  been  offered,  and  then  upon  the 
passage  of  the  bill,  or  the  substitute  bill  in  lieu  thereof  as  the  case  may  be. 

General  leave  to  print  remarks  on  the  bill  is  hereby  granted  for  five  legislative 
days. 

******** 

Mr.  PRINCE.  Mr.  Speaker,  there  is  now  presented  to  this  House,  a 
very  strange  rule  of  adoption.  In  the  Record  of  yesterday,  that  is  now 
on  the  desk  of  every  Member,  under  date  of  May  13,  page  6508  of 
public  bills,  resolutions,  and  memorials  introduced,  is  one  by  Mr.  Vree- 
land,  a  bill  (H.  R.  21871)  to  amend  the  national  bank  laws,  referred  to 
the  Committee  on  Banking  and  Currency. 

That  is  the  bill  that  the  House  is  now  asked  to  take  up.  Hardly  a 
Member  has  the  bill  before  him  now;  it  is  only  within  the  last  ten 
minutes  that  it  has  been  printed  and  brought  to  the  House.  That  com- 
mittee is  to  be  discharged  from  the  consideration  of  a  bill  referred  to 
them  by  the  Speaker  of  the  House.  The  committee  has  not  had  time 
to  consider  it,  and  a  rule  is  brought  in  here  to  discharge  a  committee 
of  this  House.  Why  set  the  sixty-four  committees  of  this  House  aside  ? 
I  submit  that  the  House  is  called  upon  to  insult  a  committee  of  this 

1  Congr.  Record,  May  14,  1908. 


206  AMERICAN   FEDERAL   GOVERNMENT 

House,  without  its  having  an  opportunity  to  pass  upon  the  bill,  and  say 
that  it  shall  be  discharged.  [Applause  on  the  Democratic  side.]  If 
our  heads  go, first,  yours  may  follow.  Members  of  this  House  —  223 
of  us  —  if  our  heads  are  to  be  put  upon  the  block  now,  whose  heads  are 
to  follow  in  the  desire  to  carry  out  the  purposes  of  the  leaders  on  this 
side  when  they  want  to  consider  any  particular  business  ?  I  say  to  you 
that  the  Committee  on  Banking  and  Currency  stand  ready  to  meet  this 
afternoon  and  report  this  bill  to  this  House,  so  that  it  may  proceed  in 
an  orderly,  regular  manner  before  the  country  and  before  the  com- 
mittee of  this  House.  Is  there  any  justification  for  this  proceeding? 

Will  the  country  justify  such  action  as  this  ?  Will  the  country  justify 
us  in  saying  that  a  handful  of  Democrats  in  the  minority  can  force 
legislation  through  this  House,  where  there  are  233  Republicans  and 
166  Democrats,  or  sixty-seven  Republican  majority?  How  much  of 
a  majority  do  we  need  on  this  side  of  the  House  to  transact  business  under 
the  rules  ?  How  can  we  of  this  branch,  that  represents  the  voice  of  the 
American  electorate,  go  before  our  constituents  and  say  that  we  have 
subordinated  ourselves,  say  that  we  have  denied  to  ourselves  the  right 
to  proceed  according  to  the  rules  of  the  House  to  have  committees  re- 
port, and  that  committees  shall  be  discharged,  because,  forsooth,  for 
political  exigencies  and  none  other,  a  bill  must  be  presented  to  this 
House  and  to  the  country?  Who  is  asking  for  it?  Men  on  this  floor 
have  received  thousands  of  letters  asking  their  vote  for  or  against  putting 
wood  pulp  and  print  paper  on  the  free  list.  Thousands  of  letters  have 
come  here  asking  us  to  do  something  on  the  anti-injunction  bill,  to  do 
something  on  the  eight-hour  bill,  to  do  something  that  the  people  want. 
I  pass  the  platter  around  to  my  colleagues  and  ask  you,  who  has  asked 
you  to  do  this  act  ?  Political  exigency !  Throw  to  the  business  people 
of  the  United  States  a  bone  when  they  ask  you  for  something  that  is 
good.  When  they  ask  you  for  bread,  throw  them  a  stone!  Can  you 
proceed  in  this  line?  You  say,  perhaps,  that  I  am  speaking  outside  of 
my  party.  No,  no !  I  am  speaking,  and  I  have  authority  to  speak, 
by  the  very  party  to  which  I  belong.  When  we  met  in  conference  May 
5,  1908,  I  offered  the  following  resolution  which  was  unanimously 
adopted 

The  SPEAKER  pro  tempore.    The  time  of  the  gentleman  has  expired. 

Mr.  PRINCE.     I  ask  time  to  read  this  resolution. 

Mr.  WILLIAMS.     Will  two  minutes  longer  be  sufficient? 

Mr.  PRINCE.     A  minute  and  a  half  will  do. 

Mr.  WILLIAMS.  I  yield  three  minutes  more  to  the  gentleman,  or  so 
much  thereof  as  he  may  desire. 

Mr.  PRINCE.    This  resolution  was  unanimously  adopted: 

Resolved,  That  this  meeting,  or  any  adjournment  thereof,  is  only  a  conference 
and  not  a  caucus,  and  shall  not  have  the  binding  effect  of  a  caucus ;  and  that 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES    207 

those  who  participate  in  its  deliberations  shall  be  absolutely  free  hereafter  to  act 
in  accordance  with  their  own  judgment  with  reference  to  all  matters  considered 
before  it. 

My  fellow- Members,  put  the  yoke  upon  you,  if  you  will.  Walk  under 
the  yoke,  "under  buck,"  as  the  expression  was  in  the  time  of  the  yoke 
of  oxen.  Now,  the  yoke  may  be  easy  and  the  burden  light,  but  I  want 
to  say  to  you  I  will  not  put  on  the  yoke ;  I  will  not  assume  the  burden 
and  go  before  my  constituents  and  say  that  I  am  in  favor  of  makeshift 
legislation ;  that  I  am  in  favor  of  discharging  committees  of  this  House ; 
that  I  am  in  favor  of  overriding  the  wishes  of  the  people ;  that  I  am  to 
be  a  mere  tobacco  sign,  to  be  moved  hither  and  thither,  a  mere  pawn 
upon  the  chessboard !  I  am  here  to  represent  my  people.  That  reso- 
lution permits  me  to  represent  them,  and  I  shall  vote  against  such 
resolutions  as  this,  and  I  ask  other  men  who  will  have  to  go  before 
their  constituents  to  consider  well,  because  no  one  of  you  can  say,  as 
they  tried  to  say  when  the  crime  of  1873  was  committed,  "We  did  not 
know  anything  about  it."  You  all  know.  You  have  your  eyes  open. 
You  walk  intelligently  and  knowingly,  and  if  you  vote  for  this  resolu- 
tion, remember  that  the  next  time  your  committee  does  not  see  fit  to  do 
what  some  people  want  you  to  do,  your  heads  will  be  laid  upon  the 
block,  they  will  be  cut  off,  and  the  whole  legislation  for  90,000,000  of 
people  is  to  roll  around  three  men.  [Applause  on  the  Democratic  side.] 
Three  men !  And  I  say  here  and  now,  to  the  House  and  the  country, 
the  do-nothing  Congress  has  been  here  long  enough.  If  it  were  not  for 
the  bright,  brainy,  forceful  character  at  the  other  end  of  the  Avenue,  I 
doubt  whether  we  would  have  done  anything  except  pass  a  few  appro- 
priation bills;  but,  thank  God,  there  is  somewhere  in  this  country,  at 
the  other  end  of  the  Avenue,  a  man  whose  ears  are  to  the  ground,  a  man 
whose  heart  is  in  sympathy  with  the  people,  and  he  is  insisting  upon 
legislation,  and  what  little  we  get  is  through  him.  It  is  through  him 
and  his  special  messages  that  we  accomplish  anything  in  the  first  session 
of  the  Sixtieth  Congress  for  the  benefit  of  the  90,000,000  of  people  that 
we  represent  here  on  this  floor.  [Applause.] 

Mr.  WILLIAMS.    How  much  time  have  I  remaining,  Mr.  Speaker? 

The  SPEAKER.     The  gentleman  has  twelve  minutes. 

Mr.  WILLIAMS.  I  will  ask  the  gentleman  from  New  York  whether 
he  expects  to  conclude  and  use  all  of  his  time  with  one  speech,  or  ex- 
pects to  have  more  than  one  speech? 

Mr.  VREELAND.  We  will  use  the  remainder  of  our  time  with  one 
speech. 

Mr.  WILLIAMS.  Mr.  Speaker,  there  is  nothing  hitherto  evolved  out 
of  the  history  of  the  human  race  quite  as  kaleidoscopic  as  the  Repub- 
lican party.  Some  time  ago  we  upon  this  side  of  the  Chamber  were  in- 
formed by  the  gentleman  from  New  York  [Mr.  Payne],  the  majority 
floor  leader,  and  by  the  Speaker's  "Rules  Deputy,"  the  gentleman  from 


208  AMERICAN   FEDERAL   GOVERNMENT 

Pennsylvania  [Mr.  Dalzell],  and  by  the  other  member  of  that  com- 
mittee, the  gentleman  from  New  York  [Mr.  Sherman]  that  no  legisla- 
tion having  a  Democratic  initiative  would  be  so  much  as  considered  by 
the  majority  of  this  House.  You  announced  to  the  country  that  we 
were  legislatively  disbarred  and  that  there  was  no  use  in  our  burning 
our  lights  over  legislative  study. 

This  morning  one  of  the  same  gentlemen  comes  to  us  —  I  started  to 
say,  with  a  carefully  concocted  rule,  but  I  am  afraid  the  Speaker  has 
got  so  that  he  is  afraid  even  of  the  Committee  on  Rules  —  but  with  a 
carefully  concocted  motion  to  suspend  the  rules,  in  words  in  which,  I 
think,  I  find  the  fine  hand  of  the  gentleman  from  Pennsylvania  not  only 
proposing  that  the  Democrats  shall  initiate  legislation,  but  undertak- 
ing to  designate  just  precisely  what  legislation  they  shall  initiate.  [Ap- 
plause on  the  Democratic  side.]  And  it  is  done  upon  the  ground  that 
that  legislation  bears  my  name.  He  does  not  even  permit  this  side  to 
amend  the  bill  H.  R.  16730  to  suit  itself  in  as  far  as  it  desires  to  amend 
it.  The  rule  does  not  even  permit  me  to  amend  it  in  so  far  as  I  desire 
to  amend  it,  especially  in  one  essential  part  of  it,  where  a  typewriter's 
carelessness  in  section  7  exists  in  the  bill  that  was  introduced  on  the 
7th  of  February,  1908. 

It  is  an  old  adage  "Beware  of  the  Greeks  bearing  gifts";  and  if  in 
the  old  time  men  were  to  beware  of  Greeks  bearing  gifts,  my  heaven ! 
how  much  more  ought  we  to  beware,  in  these  latter  days  of  improved 
ingenuity,  of  Illinois,  Pennsylvania,  and  New  York  Republicans  bear- 
ing gifts.  [Laughter  and  applause  on  the  Democratic  side.] 

The  Banking  and  Currency  Committee  considered  a  bill,  and  they 
reported  the  bill  and  recommended  it  to  this  House.  I  am  opposed  to 
it.  I  believe  everybody,  or  nearly  everybody,  on  this  side  is  opposed  to 
it,  but  there  is  a  chance,  at  any  rate  theoretically  if  not  practically,  that 
it  would  receive  serious  consideration.  Indeed,  there  are  those  who 
believe  that  in  a  fair  fight  with  the  Vreeland  bill  it  might  win.  There 
is  not  a  man  of  you  that  would  propose  to  give  a  moment's  serious  con- 
sideration to  the  Williams  currency  bill.  It  is  a  Democratic  bill.  If 
it  was  the  best  bill  on  banking  and  currency  ever  introduced  in  the 
world,  there  is  not  one  of  you  that  would  dare  privately  to  express  an 
opinion  favorable  to  it  without  having  previously  seen  the  Speaker  and 
explained  why  you  were  going  to  do  it  and  received  his  permission  to 
do  it.  [Laughter  and  applause  on  the  Democratic  side.] 

You  have  virtually  served  notice  on  us  that  we  are  disbarred  legisla- 
tively, and  then  you  select  a  bill  for  us  and  say,  "Play  to  the  gallery, 
you  Democrats,"  by  voting  for  or  against  it.  It  is  a  better  bill  than 
yours  and  we  are  for  it,  but  we  will  not  let  you  obscure  the  real  issue 
which  is  the  abominability  of  your  bill,  by  putting  ours  in  front.  You 
are  inviting  us  to  commit  a  tactical  error  offending  those  few  conscien- 
tious, honest,  nonpartisan  Republicans  that  are  opposed  to  this  infamy 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     209 

of  the  Vreeland  bill  by  substituting  ourselves  in  point,  of  consideration 
for  them  and  their  views.  [Applause  on  the  Democratic  side.]  We 
decline  to  be  "deposited  in  that  cavity."  [Laughter  and  applause  on 
the  Democratic  side.] 

Now,  Mr.  Speaker,  what  have  you  done?  You  are  going  to  intro- 
duce a  bill  to  reform  the  currency  that  goes  to  the  very  commercial 
vitalization  of  80,000,000  of  people,  and  you  are  going  to  give  four  hours 
of  debate !  Four  weeks  would  not  have  been  sufficient.  The  gentle- 
man from  New  York  [Mr.  Vreeland]  says  we  will  oppose  his  bill  "be- 
cause it  is  a  Republican  bill."  Why,  bless  your  hearts,  we  are  not  in 
the  habit  of  opposing  things  because  they  have  a  Republican  origin, 
and  you  know  it.  [Derisive  laughter  on  the  Republican  side.] 

There  is  not  one  of  you  laughing  that  does  not  know  it,  and  you  know 
that  your  laugh  is  not  sincere,  but  hypocritical.  Upon  this  side  for  the 
last  three  years  there  has  not  been  a  good  measure  recommended  by 
a  Republican  President  or  a  Republican  committee  —  good  in  our 
opinion,  I  mean,  of  course  —  that  we  have  not  advocated  and  that  we 
have  not  helped  through.  It  has  been  our  boast  that  it  is  no  longer  a 
maxim  that  "the  duty  of  an  opposition  was  to  oppose,"  but  that  the 
duty  of  the  opposition  is  to  oppose  wrong  things  and  advocate  right 
things,  no  matter  whence  they  come.  [Applause  on  the  Democratic 
side.]  The  history  of  the  party  in  the  rate  bill,  the  history  of  the  party 
in  connection  with  the  anti-injunction  recommendations  of  the  President, 
the  history  of  the  party  in  connection  with  the  employers'  liability  bill, 
all  prove  that  what  I  state  is  true,  and  proves  your  recently  attempted 
vaudeville  laugh  is  a  pretense  and  hypocrisy. 

Who  stands  for  this  Vreeland  bill?  Nobody  but  the  Republican 
machine  in  this  House.  The  gentleman  from  Pennsylvania,  Mr.  Roth- 
ermel,  telegraphed  all  the  banks  within  his  district  and  got  answers 
this  morning  from  nineteen  of  them,  and  only  three  of  them  did  not 
reply,  advising  him  to  beat  the  Vreeland  bill.  They  regard  it  as  worse 
than  nothing.  The  people  are  not  demanding  it;  the  business  men, 
farmers,  and  the  banks  are  not  demanding  it.  Nobody  is  demanding 
it.  You,  even,  that  Republican  machine  over  there,  are  not  demanding 
it  because  you  want  it.  You  are  demanding  it  merely  to  be  able  to  go 
before  the  people  and  say:  "We  passed  something  in  the  shape  of  an 
emergency-currency  bill."  You  are  passing  it  simply  to  get  something 
into  conference,  and  in  a  secret  conference  committee  to  hatch  pluto- 
cratic mischief.  There  is  not  one  of  you  that  does  not  know  that  it  is 
an  abomination  and  a  miserable  makeshift.  It  ought  to  be  called  a  bill 
of  "authorization  for  clearance-house  associations  of  national  banks 
which  have  violated  the  law,"  or  a  "bill  of  indemnity  for  Secretaries  of 
the  Treasury  who  have  suspended  the  operation  of  the  law  in  behalf 
of  the  national  banks  and  clearance-house  associations."  [Applause 
on  the  Democratic  side.] 

14 


210  AMERICAN  FEDERAL   GOVERNMENT 


CONFERENCE  REPORT  ON  THE  CURRENCY  BILL  1 

Mr.  VREELAND.  Mr.  Speaker,  I  move  to  suspend  the  rules  and  adopt 
the  conference  report  which  I  present. 

The  SPEAKER.  The  gentleman  from  New  York  moves  to  suspend 
the  rules  and  agree  to  the  conference  report  which  he  presents. 

The  conference  report  was  read,  as  follows : 

The  committee  of  conference  on  the  disagreeing  votes  of  the  two  Houses  on 
the  amendment  of  the  Senate  to  the  bill  (H.  R.  21871)  to  amend  the  national 
banking  laws,  having  met,  after  full  and  free  conference  have  agreed  to  recom- 
mend and  do  recommend  to  their  respective  Houses  as  follows: 

That  the  House  recede  from  its  disagreement  to  the  amendment  of  the  Senate, 
and  agree  to  the  same  with  an  amendment  as  follows :  Strike  out  all  of  the  mat- 
ter inserted  by  said  Senate  amendment  and  insert  in  lieu  thereof  the  following: 

"That  national  banking  associations,  each,  having  an  unimpaired  capital 
and  a  surplus  of  not  less  than  20  per  cent,  not  less  than  ten  in  number,  having 
an  aggregate  capital  and  surplus  of  at  least  $5,000,000,  may  form  voluntary 
associations  to  be  designated  as  national  currency  associations.  The  banks 
uniting  to  form  such  association  shall,  by  their  presidents  or  vice-presidents, 
acting  under  authority  from  the  board  of  directors,  make  and  file  with  the 
Secretary  of  the  Treasury  a  certificate  setting  forth  the  names  of  the  banks 
composing  the  association,  the  principal  place  of  business  of  the  association, 
and  the  name  of  the  association,  which  name  shall  be  subject  to  the  approval 
of  the  Secretary  of  the  Treasury.  Upon  the  filing  of  such  certificate  the  associ- 
ated banks  therein  named  shall  become  a  body  corporate,  and  by  the  name  so 
designated  and  approved  may  sue  and  be  sued  and  exercise  the  powers  of  a 
body  corporate  for  the  purposes  hereinafter  mentioned:  Provided,  That  not 
more  than  one  such  national  currency  association  shall  be  formed  in  any  city: 
Provided  further,  That  the  several  members  of  such  national  currency  associa- 
tion shall  be  taken,  as  nearly  as  conveniently  may  be,  from  a  territory  com- 
posed of  a  State  or  part  of  a  State,  or  contiguous  parts  of  one  or  more  States : 
And  provided  further,  That  any  national  bank  in  such  city  or  territory,  having 
the  qualifications  herein  prescribed  for  membership  in  such  national  currency 
association,  shall,  upon  its  application  to  and  upon  the  approval  of  the  Secretary 
of  the  Treasury,  be  admitted  to  membership  in  a  national  currency  association 
for  that  city  or  territory,  and  upon  such  admission  shall  be  deemed  and  held  a 
part  of  the  body  corporate,  and  as  such  entitled  to  all  the  rights  and  privi- 
leges and  subject  to  all  the  liabilities  of  an  original  member:  And  provided 
further,  That  each  national  currency  association  shall  be  composed  exclusively 
of  banks  not  members  of  any  other  national  currency  association. 

"The  dissolution,  voluntary  or  otherwise,  of  any  bank  in  such  association  shall 
not  affect  the  corporate  existence  of  the  association  unless  there  shall  then  remain 
less  than  the  minimum  number  of  ten  banks :  Provided,  however,  That  the  reduc- 
tion of  the  number  of  said  banks  below  the  minimum  of  ten  shall  not  affect  the 
existence  of  the  corporation  with  respect  to  the  assertion  of  all  rights  in  favor  of 
or  against  such  association.  The  affairs  of  the  association  shall  be  managed  by 
a  board  consisting  of  one  representative  from  each  bank.  By-laws  for  the 

1  Congr.  Record,  May  27,  1908. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES    211 

government  of  the  association  shall  be  made  by  the  board,  subject  to  the  ap- 
proval of  the  Secretary  of  the  Treasury.  A  president,  vice-president,  secretary, 
treasurer,  and  an  executive  committee  of  not  less  than  five  members  shall  be 
elected  by  the  board.  The  powers  of  such  board,  except  in  the  election  of  offi- 
cers and  making  of  by-laws,  may  be  exercised  through  its  executive  committee. 
"The  national  currency  association  herein  provided  for  shall  have  and  exer- 
cise any  and  all  powers  necessary  to  carry  out  the  purposes  of  this  section, 
namely,  to  render  available,  under  the  direction  and  control  of  the  Secretary  of 
the  Treasury,  as  a  basis  for  additional  circulation  any  securities,  including 
commercial  paper,  held  by  a  national  banking  association.  For  the  purpose  of 
obtaining  such  additional  circulation,  any  bank  belonging  to  any  national 
currency  association,  having  circulating  notes  outstanding  secured  by  the 
deposit  of  bonds  of  the  United  States  to  an  amount  not  less  than  forty  per 
centum  of  its  capital  stock,  and  which  has  its  capital  unimpaired  and  a  surplus 
of  not  less  than  twenty  per  centum,  may  deposit  with  and  transfer  to  the 
association,  in  trust  for  the  United  States,  for  the  purpose  hereinafter  provided, 
such  of  the  securities  above  mentioned  as  may  be  satisfactory  to  the  board  of 
the  association.  The  officers  of  the  association  may  thereupon,  in  behalf  of 
such  bank,  make  application  to  the  Comptroller  of  the  Currency  for  an  issue 
of  additional  circulating  notes  to  an  amount  not  exceeding  seventy-five  per 
centum  of  the  cash  value  of  the  securities  or  commercial  paper  so  deposited. 
The  Comptroller  of  the  Currency  shall  immediately  transmit  such  application 
to  the  Secretary  of  the  Treasury  with  such  recommendation  as  he  thinks  proper, 
and  if,  in  the  judgment  of  the  Secretary  of  the  Treasury,  business  conditions  in 
the  locality  demand  additional  circulation,  and  if  he  be  satisfied  with  the  char- 
acter and  value  of  the  securities  proposed  and  that  a  lien  in  favor  of  the  United 
States  on  the  securities  so  deposited  and  on  the  assets  of  the  banks  composing 
the  association  will  be  amply  sufficient  for  the  protection  of  the  United  States, 
he  may  direct  an  issue  of  additional  circulating  notes  to  the  association,  on 
behalf  of  such  bank,  to  an  amount  in  his  discretion,  not,  however,  exceeding 
seventy-five  per  centum  of  the  cash  value  of  the  securities  so  deposited:  Pro- 
vided, That  upon  the  deposit  of  any  of  the  State,  city,  town,  county,  or  other 
municipal  bonds,  of  a  character  described  in  section  3  of  this  act,  circulating 
notes  may  be  issued  to  the  extent  of  not  exceeding  ninety  per  centum  of  the 
market  value  of  such  bonds  so  deposited:  And  provided  further,  That  no  na- 
tional banking  association  shall  be  authorized  in  any  event  to  issue  circulating 
notes  based  on  commercial  paper  in  excess  of  thirty  per  centum  of  its  unim- 
paired capital  and  surplus.  The  term  "commercial  paper"  shall  be  held  to 
include  only  notes  representing  actual  commercial  transactions,  which  when 
accepted  by  the  association  shall  bear  the  names  of  at  least  two  responsible 
parties  and  have  not  exceeding  four  months  to  run,  etc.  [There  followed 
numerous  specific  regulations.] 

And  the  Senate  agree  to  the  same. 

TED  WARD  B.  VREELAND, 

Managers  on  the  part  of  the  House.}  THEODORE  E.  BURTON, 

(  JOHN  W.  WEEKS, 
(NELSON  W.  ALDRICH, 

Managers  on  the  part  of  the  Senate.  1  W.  B.  ALLISON, 

[EUGENE  HALE. 


212  AMERICAN   FEDERAL   GOVERNMENT 

The  SPEAKER.     Is  a  second  demanded? 

Mr.  Pujo.     Mr.  Speaker,  I  demand  a  second. 

The  SPEAKER.     A  second  is  ordered,  under  the  rule. 

Mr.  Pujo.  I  ask  the  gentleman  from  New  York,  in  the  interest  of 
the  orderly  enactment  of  legislation,  that  we  be  allowed  an  hour  on  a 
side,  at  least,  of  debate,  the  gentleman  from  New  York  to  control  one 
half  of  the  time  and  the  ranking  Member  on  the  committee  on  this  side 
to  control  the  other  half  of  the  time.  It  is  known  to  all  Members  that 
the  bill  has  just  reached  the  desks  about  two  minutes  ago,  and  there  is  not 
a  Member,  not  even  the  conferees,  who  have  had  an  opportunity  to  make 
themselves  familiar  in  the  slightest  degree  with  the  provisions  of  this  bill ; 
and  I  ask  the  gentleman,  in  the  interest  of  orderly  legislation  — 

Mr.  VREELAND.  I  want  to  make  a  parliamentary  inquiry.  Does  this 
come  out  of  anybody's  time? 

The  SPEAKER.  No ;  the  gentleman  made  a  parliamentary  inquiry 
somewhat  extended,  but  the  Chair  does  not  take  it  out  of  the  time  of 
either  gentleman.  The  gentleman  from  New  York  is  entitled  to  twenty 
minutes  and  the  gentleman  from  Louisiana  is  entitled  to  twenty  minutes. 

Mr.  Pujo.  Now,  Mr.  Speaker,  I  ask  unanimous  consent  of  this 
House  that  debate  on  the  conference  report  upon  what  is  known  as  the 
" national  currency"  legislation,  proposed  a  few  moments  ago,  be  ex- 
tended so  as  to  allow  one  hour  for  each  side,  the  time  to  be  controlled 
by  the  gentleman  from  New  York  and  the  ranking  Member  on  this  side. 

The  SPEAKER.     Is  there  objection? 

Mr.  VREELAND.  I  regret  to  say  that  I  shall  have  to  object,  for  the 
reason [Cries  of  "No,  no!"] 

The  SPEAKER.     Objection  is  heard. 

Mr.  VREELAND.  I  want  to  say  in  explanation  that  a  great  many 

gentlemen  have  told  me [Cries  of  "Regular  order!"  on  the 

Democratic  side]. 

The  SPEAKER.  The  gentleman  is  in  regular  order.  The  gentleman 
has  twenty  minutes. 

Mr.  CLARK  of  Missouri.    Are  you  taking  it  out  of  his  time? 

The  SPEAKER.     The  Chair  is  keeping  the  time. 

Mr.  COCKRAN.  Would  it  be  in  order  to  ask  an  extension  to  half  an 
hour? 

The  SPEAKER.  The  gentleman  from  New  York  asks  unanimous 
consent  for  an  extension  of  the  time  to  thirty  minutes  on  a  side  instead 
of  twenty  minutes  on  a  side. 

Mr.  VREELAND.     I  consent  to  that. 

The  SPEAKER.  The  Chair  hears  no  objection.  The  gentleman  from 
New  York  is  entitled  to  thirty  minutes  and  the  gentleman  from  Louisiana 
is  entitled  to  thirty  minutes. 

Mr.  Pujo.  Mr.  Speaker,  I  will  ask  the  Chair  to  inform  me  when  I 
have  used  three  minutes. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     213 

This  is  a  composite  bill.  It  incorporates  the  Aldrich  bill  and  the 
Vreeland  bill,  and  as  presented  is  a  composite  measure  here.  It  au- 
thorizes the  issuance  of  five  hundred  millions  of  our  circulating  cur- 
rency, should  the  bill  be  passed,  to  be  based  upon  United  States  bonds, 
State  bonds,  county  bonds,  municipal  bonds,  all  with  a  taxing  power 
behind  them.  So  far  those  are  the  main  features  of  the  Aldrich  bill. 
Each  political  autonomy  is  vested  with  the  power  to  levy  a  tax  to  pro- 
tect the  notes  should  the  issuing  bank  fail  to  retire  it  when  presented 
and  the  bonds  deposited  as  security  fail  to  realize  a  sufficient  sum  when 
disposed  of.  The  other  features  of  the  bill  are  novel,  and  I  am  surprised 
and  amazed  to  witness  their  adoption  for  the  first  time  by  the  Republican 
party  —  an  asset  currency  pure  and  simple,  a  subtreasury  scheme 
practically. 

I  call  attention  to  the  language  on  page  4  of  the  bill.  When  uniting 
banks  with  a  minimum  capital  of  $5,000,000  form  an  association,  they 
can  have  money  issued  by  dispositing  certain  securities  with  the  Treas- 
urer of  the  United  States.  Now,  what  is  the  character  and  what  is  the 
class  of  securities  required  to  be  deposited  ?  I  read,  beginning  on  page  3 : 

The  national  currency  association  herein  provided  for  shall  have  and  exercise 
any  and  all  powers  necessary  to  carry  out  the  purposes  of  the  section,  namely,  to 
render  available,  under  the  direction  and  control  of  the  Secretary  of  the  Treas- 
ury, as  a  basis  for  additional  circulation,  any  securities,  including  commercial 
paper,  held  by  a  national  banking  association. 

A  warehouse  receipt  issued  for  any  agricultural  product,  an  elevator 
receipt  for  wheat,  for  corn,  for  oats,  held  by  a  bank  can  be  used  for 
deposit  with  this  association,  and  in  turn  with  the  Secretary  of  the 
Treasury,  as  the  basis  for  circulation. 

[Here  the  hammer  fell.] 

I  will  use  two  minutes  more  of  my  time,  Mr.  Speaker. 

The  ninety-day  draft  of  a  merchant  in  Kansas  City  who  would  ship 
hay  to  New  York,  or  a  ninety-day  draft  of  a  merchant  in  Kansas  City 
who  would  ship  a  carload  of  mules  to  Louisiana,  drawn  by  him,  ac- 
cepted by  the  buyer,  and  discounted  at  the  bank,  becomes  commercial 
paper,  with  two  names  on  it,  a  legal  subsisting  basis  for  this  currency. 

I  want  to  congratulate  the  Republican  party,  being  a  sound-money 
party  (purely  in  a  Pickwickian  sense),  for  advocating  a  scheme  like  this. 
Evidently  the  political  emergency  must  be  great,  otherwise  they  would 
not  in  a  moment,  without  giving  an  opportunity  to  discuss  the  measure, 
try  to  force  such  a  currency  upon  the  American  people. 

Mr.  VREELAND.  I  regret  that  I  felt  obliged  to  object  to  an  extension 
of  time  for  debate  upon  this  bill,  but  quite  a  number  of  gentlemen  on 
this  side  who  wish  to  get  away  on  afternoon  trains  have  informed  me 
that  if  the  extension  is  granted  they  will  be  unable  to  remain  until  a  vote 
is  taken. 


214  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  Speaker,  the  motion  which  I  have  made  to  agree  to  the  conference 
report  means  that  the  Republican  conferees  on  the  part  of  this  Repub- 
lican House  and  the  conferees  on  the  part  of  the  Republican  Senate  have 
agreed  upon  a  financial  bill,  have  brought  it  in  here  with  a  unanimous 
report,  and  hope  that  it  will  be  adopted  by  this  Republican  House. 

Mr.  Speaker,  we  believe  that  the  Republican  party  has  not  ceased  to 
be  a  great  constructive  party.  We  believe  that  it  is  still  the  great  busi- 
ness party  of  the  country.  We  believe  that  this  conference  report  now 
before  us  is  evidence  that  the  Republican  party  is  still  a  great  cohesive 
body,  with  power  to  get  together  and  place  upon  the  statute  books  legis- 
lation which  will  prevent  the  recurrence  of  such  a  disaster  as  befel  the 
American  people  last  October. 

Mr.  Speaker,  the  concessions  that  have  been  made  between  the  House 
and  the  Senate  in  the  preparation  of  this  conference  report  are  honorable 
concessions,  such  as  might  properly  be  made.  The  financial  bill  which 
we  have  brought  in  here  today  is  the  bill  passed  by  this  House  with 
amendments  to  which  the  House  conferees  have  consented.  We  be- 
lieve that  it  is  a  good  bill  and  one  which  this  House  may  place  upon  the 
statute  books,  satisfied  that  it  will  carry  out  the  purpose  for  which  it  is 
enacted.  The  bill  which  we  have  brought  in  here  with  amendments 
is  substantially  the  House  bill  in  all  its  essential  features  that  was  adopted 
by  the  Republican  conference,  drawn  by  a  committee  appointed  by  that 
conference,  and  passed  through  the  House  of  Representatives. 


AMENDMENTS  TO  THE   HOUSE  BILL 

I  desire,  first,  to  refer  to  the  amendments  which  have  been  made  to 
the  House  bill.  We  have  added  to  our  bill  a  portion  of  the  Senate  bill. 
I  suppose  the  minority  upon  this  floor  will  ring  all  the  changes  and  use 
their  keenest  sarcasm  and  invective  in  charging  that  we  have  adopted 
the  Aldrich  bill.  But,  Mr.  Speaker,  although  the  leader  of  the  minority 
may  run  his  dagger  through  the  cloak  of  the  Aldrich  bill  he  will  find 
that  the  body  has  been  removed  from  the  inside  of  it.  What  were  the 
objections  to  the  Aldrich  bill?  What  were  the  criticisms  made  upon 
this  side  of  the  Chamber  or  by  Republican  Members  of  this  House  when 
the  Aldrich  bill  came  over  from  the  Senate?  We  all  understand  the 
objections  which  were  made  to  section  8  of  that  bill,  changing  the  law 
applying  to  the  reserves  of  banks,  and  section  n,  with  its  restrictions 
upon  the  directorate  and  officers  of  banks.  There  are  many  who  be- 
lieve that  these  provisions  might  be  changed  so  that  they  would  be  use- 
ful as  a  part  of  our  banking  laws.  But  it  was  thought  that  they  might 
better  be  left  to  be  considered  by  the  commission  provided  in  this  bill. 
But  there  was  further  objection  to  the  Senate  bill  as  it  came  to  the 
House  by  many  upon  this  side  of  the  Chamber.  What  is  the  purpose 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES    215 

of  this  law  ?  It  is  to  provide  a  great  reservoir  of  currency,  to  be  drawn 
upon  only  in  case  of  need.  It  is  not  intended  to  provide  for  the  ordinary 
needs  of  business.  It  is  to  provide  against  a  currency  famine  such  as 
we  had  last  October.  It  is  to  give  a  feeling  of  confidence  to  the  bankers 
of  the  country  and  to  the  depositors  of  the  banks.  It  is  to  assure  them 
against  fright  and  panic  which,  for  some  unexpected  reason,  may  take 
possession  of  the  people.  It  is  to  provide  that  $500,000,000  shall  be 
printed  and  ready  for  use,  held  as  a  reserve,  to  come  out  only  with  the 
consent  of  the  Secretary  of  the  Treasury  and  upon  his  certificate  that 
it  is  needed. 

Mr.  McHENRY.  The  House  of  Congress,  Mr.  Speaker,  is  supposed 
to  be  both  a  deliberative  and  a  representative  body,  but  in  this  action 
which  you  now  propose  the  people  are  to  learn  that  this  legislative  body 
is  governed  not  by  deliberation,  but  by  party  passion ;  controlled  not  by 
the  people,  but  by  one  man.  You  can  pass  this  iniquitous  measure  if 
you  choose,  because  you  have  the  power ;  but  there  is  one  thing  you  can 
not  do  —  you  can  not  compel  the  people  to  accept  the  provisions  of  a 
law  which  they  do  not  approve. 

For  six  long,  tedious  months  the  Committee  on  Banking  and  Currency 
have  given  faithful  study  and  consideration  to  this  vitally  important 
question.  The  committee  was  unanimous  in  a  desire  to  frame  a  non- 
partisan  measure  which  would  work  to  the  good  of  all  the  people  and 
not  for  the  special  interest  of  a  favored  few.  There  were  some  basic 
principles  upon  which  we  disagreed,  but  the  disagreement  was  an  honest 
and  nonpolitical  one.  But  the  gentleman  from  New  York,  Mr.  Vree- 
land,  who  seems  to  have  become  the  spokesman  for  the  Republican 
managers  in  the  House,  appeared  before  our  committee  at  the  public 
hearings,  literally  whipping  the  Republican  members  into  line,  injecting 
a  discordant  partisan  element  in  our  deliberation.  We  have  been 
frankly  told  that  a  panic  was  on  and  another  one  coming,  and  that  it 
was  necessary,  in  order  to  secure  the  election  of  a  Republican  President, 
that  some  sort  of  financial  legislation  be  placed  upon  the  statute  books. 
No  matter  what,  only  so  it  was  something.  We  accept  the  challenge, 
Mr.  Speaker.  But  while  we  of  the  minority  are  fighting  with  every 
ounce  of  strength  we  have  to  prevent  the  passage  of  this  bill,  we  feel  that 
it  is  a  hopeless  fight ;  that  the  orders  from  Wall  street  and  Republican 
party  bosses  are  more  powerful  in  this  Congress  than  the  appeals  or  the 

needs  of  the  people. 

******** 

I  am  anxious,  Mr.  Speaker,  that  proper  currency  legislation  shall  be 
enacted,  but  I  am  not  willing  that  the  people  shall  be  fooled  and  that 
the  sovereign  right  of  the  Government  to  issue  money  shall  be  taken 
from  it  and  delegated  to  Wall  street  gamblers.  Rather  than  have  a  bill 
of  this  kind,  it  would  be  infinitely  better  for  the  country  to  have  no  legis- 
lation at  all  at  this  session. 


216  AMERICAN   FEDERAL   GOVERNMENT 

Under  the  rule  by  which  this  bill  is  brought  up  for  action  practically 
all  debate  is  shut  off  and  no  amendments  permitted.  If  you  will  give 
us  two  days'  debate,  Mr.  Speaker,  the  bill  can  probably  be  so  amended 
that  it  will  be  a  workable  measure  and  fair  to  all  parts  of  the  country  alike 
and  to  all  people,  but  this  is  not  a  part  of  your  plan  —  the  Wall  street 
plan  demands  that  the  bill  shall  go  through  just  as  it  was,  without  any 
changes.  It  has  just  come  from  the  conference  report  and  we  are  to 
vote  on  it  immediately,  and  I  will  venture  the  assertion  that  nine  out  of 
ten  Members  of  the  House  have  not  had  time  to  read  the  bill  —  do  not 
know  what  they  are  voting  upon,  and  are  simply  obeying  the  order  of 
the  party  —  Wall  street  bosses.  Why  this  haste  ?  If  the  measure  is  an 
honest  one,  it  will  bear  the  light  of  investigation  and  intelligent  discus- 
sion. Is  it  the  part  of  a  deliberative  body  to  rush  a  conference  report 
here  and  demand  that  we  shall  speak  and  vote  aganist  the  measure 
without  even  having  had  time  to  read  the  bill?  It  is  now  just  twelve 
minutes  since  the  printed  conference  report  has  been  delivered,  and  with- 
out any  study  or  preparation  whatever  we  are  called  upon  to  register 
our  protest  against  the  bill.  This  represents  the  most  important  legis- 
lation that  Congress  has -had  before  it  since  the  civil  war.  To  now  vote 
upon  it,  without  a  full  knowledge  of  the  bill  and  without  any  privilege  to 
amend,  do  you  suppose,  sir,  that  the  American  people  can  view  our 
action  with  favor? 

If  you  will  give  us  reasonable  time  for  debate,  I  have  sufficient  con- 
fidence in  the  intelligence  and  integrity  of  the  individual  Members  of 
the  House  to  believe  that  the  bill  will  either  be  honestly  amended  or 
killed  outright,  which,  for  the  country's  sake  and  for  the  Republican 
party's  sake,  too,  would  be  the  better  plan. 

The  bill  provides  that  ten  banks  with  a  total  capitalization  of 
$5,000,000  may  go  together  and  form  themselves  into  a  so-called  " clear- 
ance-house association,"  with  the  power  delegated  to  them  by  the  Gov- 
ernment to  issue  currency  to  the  extent  of  $500,000,000.  At  the  present 
time,  Mr.  Speaker,  the  currency  of  our  country  is  on  what  is  termed  a  gold 
and  United  States  bond  basis.  That  is,  every  dollar  of  currency  except 
our  present  outstanding  national-bank  notes  is  guaranteed  by  the  actual 
gold  or  silver  coin  in  the  United  States  Treasury  and  is  redeemable  in 
gold  or  silver  on  demand.  In  the  establishment  of  the  national  banking 
system,  it  was  agreed  that  a  national  bank  could,  to  the  extent  of  its 
capital,  issue  money  against  the  United  States  bonds.  The  United 
States  Government,  through  this  medium,  merely  divides  up  the  bonds, 
which  represent  the  people's  obligation,  into  small  denominations  in 
order  that  they  may  be  used  in  circulation  to  meet  the  demands  of  trade. 
So  successful  has  been  the  practical  working  of  this  plan  that  to-day  no 
man  thinks  of  looking  at  a  note  to  see  whether  it  is  a  national-bank  note, 
a  United  States  Treasury  note,  a  gold  certificate,  or  a  silver  certificate. 
The  people  have  absolute  confidence  in  their  currency  at  the  present 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     217 

time.  If  anything  is  needed,  it  is  a  bill  which  will  unify  our  currency 
system  and  not  make  it  more  diverse,  as  this  does.  As  I  have  already 
told  you  in  my  previous  address,  the  country  is  now  suffering  more  from 
lack  of  confidence  than  lack  of  money,  and  that  any  legislative  action 
upon  this  question  should  be  with  the  idea  of  restoring  confidence,  not 
of  creating  further  doubt  or  distrust  in  the  minds  of  the  people  as  to  the 
character  or  value  of  the  money  which  they  are  to  receive  in  exchange 
for  the  sale  of  their  labor  or  the  products  of  their  labor.  This  bill  is  the 
entering  wedge  for  a  radical  and  violent  change  in  the  currency  of  our 
country.  It  means  the  retirement  of  the  present  United  States  bond- 
secured  note  as  rapidly  as  it  can  be  done  under  the  law,  and  to  replace 
the  national  bond  security  with  whatever  railroad  or  other  bonds  or  notes 
which  a  bank  issuing  currency  may  have. 

I  will  not  go  into  the  economic  side  of  this  question  or  burden  you  with 
statistics,  but  will  discuss  the  practical  workings  of  the  bill  and  prove  to 
your  satisfaction,  if  you  are  open  to  conviction,  that  the  bill  is  imprac- 
tical; that  its  use  will  be  confined  entirely  to  Wall  street  banks;  that 
it  will  not  stop  panics,  but,  on  the  contrary,  will  precipitate  them ;  that 
it  will  absolutely  insure  the  monopoly  of  the  people's  money  by  predatory 
interests.  In  brief,  sir,  I  will  prove  to  you  that  it  is  a  Wall  street  measure 
pure  and  simple ;  that  it  is  a  measure  against  the  honest  business  in- 
terests and  producers  of  all  classes,  and  to  enact  it  into  a  law  will  be  a 
crime  against  the  people  which  they  will  resent  at  the  polls  in  November. 
[Applause.] 

BRIEF  SUMMARY  OF  THE  BILL 

I  do  not  want  to  burden  the  Record  by  offering  the  entire  bill,  but  will 
briefly  outline  its  essential  features. 

First.  It  provides  for  an  association  of  not  less  than  ten  banks,  with  a 
total  capitalization  of  not  less  than  $5,000,000  for  the  purpose  of  issuing 
money.  Each  bank  in  said  association  to  have  one  vote,  and  to  choose  a 
.  board  of  five  managers,  of  which  three  shall  constitute  a  quorum  for  the 
transaction  of  business. 

Second.    It  provides  that  the  total  issue  shall  not  exceed  $5,000,000. 

Third.  That  the  issue  shall  be  based  upon  national,  State,  county,  or 
municipal  bonds,  railroad  stock,  or  bonds  and  notes  or  any  security 
which  a  bank  may  own  or  hold  as  collateral. 

Fourth.  It  provides  that  the  rate  of  tax  on  said  circulation  shall  be  5 
per  cent  per  annum  for  the  first  month  and  i  per  cent  per  annum  for  each 
additional  month  until  a  maximum  tax  of  10  per  cent  is  reached. 

Fifth.  It  provides  an  interest  rate  of  i  per  cent  per  annum  on  Gov- 
ernment deposits  —  perhaps. 

The  Wall  street  interests  have  become  alarmed  at  the  attitude  of  the 
people  in  their  demand  for  banking  and  currency  reform.  Realizing 


218  AMERICAN  FEDERAL   GOVERNMENT 

that  all  such  demands  are  eventually  enacted  into  law,  they  have  de- 
cided, while  they  have  the  power,  to  fool  the  people  under  threat  of  an- 
other panic,  and  enact  a  law  which  will  continue  their  present  control  of 
the  currency  of  the  country.  That  is,  if  a  supplemental  issue  of  currency 
is  to  be  authorized,  it  must  not  be  allowed  to  pass  beyond  the  control  of 
the  large  banking  syndicates,  so  the  underlying  principles  of  this  forced 
measure  may  be  found  in  two  definite  objects. 

First,  to  enable  them  to  control  and  regulate  panics  at  will  and  to  stop 
panics  when  it  suits  their  purposes  to  have  them  stopped. 

Second,  to  provide  a  permanent  fund  for  the  Wall  street  gambler's 
use. 

Mr.  WILLIAMS.  Mr.  Speaker,  you  were  never  so  highly  honored  in 
all  your  life  as  you  have  been  to-day.  This  bill  ought  to  be  entitled  the 
"  Cannon- Aldrich  political  emergency  bill."  [Applause  on  the  Demo- 
cratic side.]  Your  influence  over  this  House  was  never  so  vastly  shown 
as  to-day.  But  the  other  day  the  House  said,  "the  Aldrich  bill  is  alto- 
gether wicked,"  and  it  would  have  none  of  it.  It  was  not  good  enough 
for  the  House.  But  the  other  day  the  Republican  Senate  said  that  the 
Vreeland  bill  was  altogether  iniquitous  and  destructive  of  the  best  in- 
terests of  the  country,  and  it  would  have  none  of  it.  Nobody  so  poor  in 
the  House  as  to  do  reverence  to  the  Aldrich  bill ;  nobody  so  poor  in  the 
Senate  as  to  do  reverence  to  the  Vreeland  bill.  But  to-day  the  great  dis- 
covery —  two  iniquities  compose  a  perfect  good.  Neither  bill  was  good 
enough  for  either  House,  but  to-day  both  bills  combined  are  good  enough 
for  both  Houses.  [Applause  on  the  Democratic  side.]  Why,  this  comes 
in  response  to  the  sincere  prayer  of  the  Speaker,  because  he  does  pray. 
[Laughter.]  It  has  not  been  long  since  his  prayer  began  to  bear  this  re- 
frain: "Anything,  O  God,  anything;  it  makes  no  difference  what,  even 
if  it  be  really  nothing,  just  so  that  I  can  call  it  something;  anything  be- 
fore the  House  adjourns."  [Applause  on  the  Democratic  side.] 

"It  will  not  do  for  the  Republican  party  to  go  to  the  country  with  ab- 
solutely nothing.  It  must  have  something  that  can  be  called  something 
by  somebody  somewhere."  And  in  response  to  that  prayer,  directed  not 
to  the  Almighty,  but  to  the  members  of  the  House  here  present,  and  with 
the  conference  report  on  public  buildings  held  back,  those  who  were 
lions  to  thwart  the  pathway  of  the  Aldrich  bill  are  now  lambs.  I  find  on 
page  6635  of  the  Congressional  Record  these  words  of  the  gentleman 
from  Ohio  [Mr.  Burton]  referring  to  the  Aldrich  bill: 

If  it  passes  this  House,  it  will  be  without  my  vote  and  without  my  support. 

Now  you  bring  back  the  Aldrich  bill.    [Applause  on  Democratic  side.] 

I  said  the  other  day,  because  sometimes  I  am  accidentally  a  prophet, 

that  "nobody  here  wanted  the  miserable  makeshift  that  passed  the 

House,  but  that  you  merely  wanted  to  get  into  conference  so  that  you 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     219 

could  go  back  with  the  Aldrich  bill,"  and  that  was  the  reply  that  was  re- 
ceived from  that  side  of  the  House,  as  worded  by  the  gentleman  from 
Ohio. 

The  gentleman  from  New  York  [Mr.  Cockran]  says  that  there  is  no 
such  thing  as  an  emergency  currency.  The  gentleman  is  mistaken. 
Emergency  Republican  currency  is  absolutely  necessary  to  Republican 
political  emergencies,  and  necessary  right  now.  [Loud  applause  on 
Democratic  side.] 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  VREELAND.  Mr.  Speaker,  has  the  other  side  used  up  all  of  its 
time? 

The  SPEAKER.    Yes. 

Mr.  VREELAND.  I  yield  to  the  gentleman  from  Ohio  [Mr.  Burton] 
the  remaining  time  on  this  side.  [Applause  on  the  Republican  side.] 

Mr.  BURTON  of  Ohio.  Mr.  Speaker,  the  incompetency  of  the  Demo- 
cratic party  to  rule  this  people  was  never  more  emphatically  displayed 
than  by  their  course  on  this  currency  legislation.  [Applause  on  the  Re- 
publican side.]  Last  autumn  there  was  a  frightful  panic.  The  mightiest 
financial  institutions  tottered  as  if  they  would  fall,  the  wheels  of  commerce 
and  industry  were  clogged,  hundreds  of  thousands  were  thrown  out  of 
employment.  Men  who  had  walked  with  head  erect  and  proud  were 
compelled  to  beg  in  the  streets  for  bread,  and  much  of  the  cause  of  this 
distressful  condition  was  the  rigidity  and  insufficiency  of  our  currency 
system. 

The  Republicans  of  this  House  came  here  determined,  in  spite  of  bar- 
ren theories,  in  spite  of  selfish  interests,  and  against  the  solid  opposition 
of  the  Democratic  party,  to  do  something  for  this  country,  so  that  such  a 
calamity  might  not  occur  again.  [Applause  on  the  Republican  side.] 

If  you  gentlemen  had  been  in  power  and  had  gone  home,  having  done 
nothing,  you  might  better  have  called  on  the  rocks  and  the  hills  to  fall  on 
you  because  of  your  inability  to  take  care  of  this  most  urgent  problem. 
And  yet  you  fill  the  air  with  cries  that  this  measure  is  prompted  only  by  a 
political  emergency,  that  it  is  partisan.  Gentlemen,  if  there  is  any  ques- 
tion which  should  be  approached  dispassionately,  if  there  is  any  question 
wherein  we  should  seek  to  grasp  the  real  situation  and  solve  it  it  is  this 
which  relates  to  the  money  supply  of  the  country. 

The  gentleman  from  New  York  [Mr.  Cockran]  wants  to  know  what  is 
an  emergency.  If  he  had  been  in  New  York,  or  even  in  any  small  manu- 
facturing town  last  October  or  November,  he  would  have  gotten  a  lesson 
as  to  what  is  an  emergency  that  would  have  sunk  deep,  and  which  he 
never  would  have  forgotten. 

You  say  we  have  a  composite  bill,  made  up  of  the  Aldrich  and  the 
Vreeland  provisions.  The  Aldrich  measure,  with  its  iniquities,  you  say 
is  brought  in  here.  Why  is  it,  gentlemen,  that  you  have  not  said  one 
word  about  this  fact,  that  the  basic  principle  of  your  bill  —  the  Williams 


220  AMERICAN   FEDERAL   GOVERNMENT 

bill  —  was  identical  with  that  of  the  Aldrich  bill  —  the  issuance  of  cur- 
rency based  upon  municipal  or  public  bonds  ?  [Applause  on  the  Repub- 
lican side.]  Not  only  did  you  make  municipal  and  State  bonds  the  basis 
for  currency,  but  you  would  have  allowed  them  to  constitute  half  of  your 
reserves.  You  out-Aldriched  Aldrich  in  your  bill.  [Applause  on  the 
Republican  side.] 

I  trust  we  will  not  hear  from  you  in  this  next  campaign  about  the  Al- 
drich bill  unless  you  explain  that  fact.  Why,  it  looks  as  if  Senator  Al- 
drich had  imitated  you  in  drawing  his  measure.  [Laughter.] 

The  gentleman  from  Mississippi  has  quoted  at  length  some  remarks 
of  mine.  I  want  to  congratulate  him,  or  gentlemen  on  either  side,  who 
read  my  remarks ;  it  is  an  evidence  they  are  very  thorough  students  and 
that  they  will  be  thoroughly  posted.  He  quoted  a  statement  of  mine 
that  I  would  not  vote  for  the  Aldrich  bill.  I  have  not,  and  am  not  going 
to  [derisive  cries  on  the  Democratic  side],  because  that  bill  gave  the  right 
to  issue  emergency  currency  exclusively  to  banks  which  had  State,  county, 
and  municipal  bonds.  I  do  not  believe  in  that  on  principle.  I  do  not 
believe  that  you  ought  to  compel  banks  to  carry  a  stock  of  bonds  as  a 
requisite  for  the  issuance  of  currency. 

But  this  bill  throws  open  to  any  national  bank  of  the  country  the  op- 
portunity to  become  a  member  of  an  association  of  banks,  each  of  which 
may  issue  currency  upon  its  resources  —  that  is,  upon  commercial  paper 
or  securities  approved  by  the  association. 

There  must  be  at  least  ten  banks  associated,  having  a  capital  and  sur- 
plus of  not  less  than  $5,000,000.  But  if  any  single  banking  association 
having  public  bonds  wishes  to  issue  currency  under  the  method  embodied 
in  the  Aldrich  bill,  it  may  do  so. 

On  this  side  we  have  had  the  courage  to  bring  forward  a  measure  for 
the  relief  of  the  country  and  to  meet  the  fear  of  panic  and  distress ;  on 
the  other  side  you  have  fled  from  your  own  measure.  [Laughter  on  the 
Republican  side.]  And  now  you  accuse  others  because  they  introduce  a 
bill  for  the  purpose  of  meeting  the  existing  situation,  containing  a  prin- 
ciple to  which  even  you  can  not  make  objection. 


FROM  THE  SENATE  DEBATE  ON  THE  CURRENCY  BILL1 

MR.  LA  FOLLETTE.  Consider  for  one  moment  the  proceedings  which 
have  led  up  to  this  present  situation !  Here  we  have  thrust  in  upon  the 
closing  hours  of  this  session  legislation,  the  most  far-reaching  in  its  con- 
sequences to  the  American  people  of  any  which  Congress  has  considered 
for  many  years.  It  has  heen  held  in  conference  for  many  weeks,  while 
the  session  has  been  permitted  to  drag  along.  Appropriation  bills  have 
been  gotten  out  of  the  way.  Bills  which  found  favor  with  those  who  con- 

1  Congr.  Record,  May  29,  1908.     See  other  parts  of  this  debate,  supra,  p.  156  et  seq. 


SENATE  AND  HOUSE  CONFERENCE  COMMITTEES     221 

trol  have  been  allowed  to  pass.  For  days  and  days  we  have  been  held 
here  in  idleness,  while  many  urgent  public  measures  have  been  denied 
consideration.  Efforts  have  been  made  from  day  to  day  to  take  up  im- 
portant public  measures  only  to  encounter  the  opposition  of  the  leaders 
who  control  the  proceedings  of  the  Senate.  Day  after  day  has  been 
wasted  in  filibustering,  demanding  the  reading  of  the  Journal,  at  length 
making  dilatory  motions,  interposing  bills  of  private  and  local  interest, 
and  all  of  the  many  ways  known  to  those  who  seek  to  delay  legislation 
have  been  practiced  by  those  who  assume  here  to  direct  and  control  in 
legislation.  Members  of  both  Houses  have  grown  restive  and  eager  to 
return  to  their  homes,  and  still  this  currency  legislation  was  held  in  con- 
ference. From  time  to  time  we  have  been  told  that  there  would  be  no 
legislation  upon  this  subject ;  that  no  conference  report  would  be  made. 
One  other  measure,  the  public  building  bill,  has  likewise  been  held  back. 
Finally,  when  the  decks  are  all  cleared,  to  the  surprise  of  everybody,  the 
conference  report  is  brought  forward  in  its  present  form,  forced  through 
one  branch  of  Congress  with  thirty  minutes  debate  on  a  side,  and  brought 
into  the  Senate,  subject  to  no  possible  change  under  the  rules,  to  be  swal- 
lowed or  rejected  whole.  And,  yet,  this  is  called  the  "  greatest  delibera- 
tive body  in  the  world!" 

Is  this  fair  legislative  procedure  ?  Is  it  just  to  the  American  people  ? 
If  it  were  a  good  measure  in  the  public  interest,  would  it  have  been  nec- 
essary to  take  this  course  to  pass  it  ?  Why  have  the  very  best  provisions 
been  stricken  out  ?  Why  has  the  amendment  strengthening  and  protect- 
ing the  bank  reserves  been  dropped  ?  Why  has  the  penalty  clause  to  pre- 
vent reckless  inflation  and  contraction  been  omitted  ?  Why  was  the  sec- 
tion to  prevent  the  investment  of  bank  funds  in  the  stocks  and  bonds  of 
other  corporations  promoted  and  controlled  by  bank  directors  suppressed  ? 
Why  is  it  made  possible  for  a  banking  association  to  use  bonds  as  a  basis 
for  currency  issue  without  respect  to  their  par  value  ?  Why  is  the  rail- 
road bond  provision  again  thrust  in  under  different  phraseology  ?  And, 
sir,  why  is  all  this  done  at  a  time  and  in  a  form  that  admits  of  neither 
deliberate  consideration  nor  amendment  to  meet  these  wrongful  changes  ? 

Mr.  President,  I  can  not  expect,  single-handed  and  alone,  to  defeat 
this  measure,  whatever  its  character.  If  it  were  possible,  I  should  be 
fully  warranted  in  obstructing  its  passage  in  any  parliamentary  way  to 
secure  its  everlasting  defeat.  I  can  not  hope  to  do  this  alone.  But,  sir, 
I  can  and  do  hope  —  if  the  proposition  which  I  shall  hereafter  submit 
is  rejected  —  to  so  husband  my  resources  as  to  hold  this  measure  up  to 
public  view  long  enough  to  arouse  the  country  and  bring  public  opinion 
to  my  support.  This  course  is  open  to  me  under  the  rules,  and  this 
course  I  shall,  in  the  discharge  of  what  I  believe  to  be  a  public  service, 
pursue  to  the  limit  of  my  impaired  physical  strength. 

Mr.  President,  I  have  for  the  most  part  confined  myself  to  a  discussion 
of  the  one  phrase  to  which  I  sought  the  attention  of  the  chairman  of  the 


222  AMERICAN   FEDERAL   GOVERNMENT 

Finance  Committee  and  of  the  Senate  at  the  very  outset  of  my  remarks. 
I  want  to  say  that  I  questioned  him  with  the  hope  and  expectation  of 
being  able  to  arrive  at  an  early  understanding  of  the  scope  and  meaning 
of  this  bill  as  interpreted  by  him  in  so  far  as  it  relates  to  railroad  securi- 
ties. I  have  been  able  to  gather  from  the  statements  made  by  the  Senator, 
as  found  in  the  Record,  upon  this  question  just  what  his  views  were  with 
respect  to  railroad  bonds  and  their  relation  to  this  proposed  legislation. 

But  I  felt  that  as  a  foundation  and  preliminary  to  a  proposition  which 
I  had  to  submit  to  the  Senator  from  Rhode  Island  I  wanted  right  in  the 
Record  of  this  day  a  definition  of  that  particular  phrase.  I  was  unfortu- 
nate, perhaps.  I  am  not  able  now  to  say  why,  but  I  did  not  succeed  in 
getting  it  and  was  forced  to  go  to  the  Congressional  Record  to  obtain  the 
best  definition  that  I  could  from  the  chairman  of  the  Finance  Committee. 

I  am  awfully  sorry,  Mr.  President,  to  be  obliged  to  call  your  attention 
to  the  fact  that  there  is  not  a  quorum  present. 

The  PRESIDING  OFFICER  (Mr.  Bacon  in  the  chair).    The  suggestion 
being  made  that  a  quorum  is  not  present,  the  Secretary  will  call  the  roll. 
******** 


VII 

ORGANIZATION    AND    RULES    OF    THE 

HOUSE 

THE  PROCEDURE  OF  ORGANIZING  THE  HOUSE  l 

[An  account  of  the  formalities  involved  in  the  organization  of  the  House  of 
Representatives  is  given  in  the  following  extract  from  the  Record.  It  will  be 
noted  that  the  clerk  of  the  preceding  Congress  makes  out  the  roll  of  membership, 
a  function  which  at  times  might  become  of  great  importance.  The  candidates 
for  the  speakership  and  for  other  offices  are,  of  course,  determined  by  party 
caucuses  preceding  the  session  of  the  House,  so  that  the  election  is  merely 
formal.  The  rules  of  the  preceding  Congress  are  ordinarily  adopted  without 
much  objection.  The  last  general  revision  took  place  in  1890.  Should  any 
member  attack  the  rules,  this  continuity  of  their  enforcement  is  always  in- 
sisted upon.  Effectual  opposition  to  the  system  of  rules  at  this  time  would  be 
possible  only  if  a  speaker  had  been  elected  who  was  in  favor  of  such  a  change, 
because  otherwise  his  entire  influence  would  be  exerted  against  such  a  change. 
At  this  time  the  entire  committee  organization  is  as  yet  potential  in  the  Speaker's 
mind,  and  he  can  exercise  a  great  influence  over  the  members  of  the  House 
through  appointments  to  important  positions.  See  in  this  connection  Wilson, 
Congressional  Government,  and  Reinsch,  American  Legislatures,  chap.  2.  It 
will  be  noted  that  on  this  occasion,  even  before  the  rules  had  been  adopted,  only 
one  man  was  recognized,  —  the  mover  of  the  resolution,  —  and  that  all  other 
speakers  were  obliged  to  get  their  recognition  through  him;  also  that  he  moved 
the  previous  question  before  finally  yielding  the  floor.] 

THIS  day,  in  compliance  with  the  provisions  of  the  Constitution,  the 
Members-elect  of  the  House  of  Representatives  of  the  Sixtieth  Congress 
assembled  in  their  Hall  and  were  called  to  order  by  Mr.  Alexander 
McDowell,  the  Clerk  of  the  last  House. 

The  CLERK.    Prayer  will  be  offered  by  the  Chaplain  of  the  last  House. 

Prayer  was  offered  by  the  Rev.  Henry  N.  Couden,  D.D.,  Chaplain 
of  the  last  House. 

The  CLERK.  The  clerk  will  call  the  roll  by  States  to  ascertain  if  a 
quorum  of  the  Sixtieth  Congress  is  present. 

The  roll,  as  made  by  the  Clerk,  was  then  called,  when  the  following 
members  answered  present: 

[Here  follows  a  list  of  the  members.] 

1  Congr.  Record,  Dec.  2,  1907. 
223 


224  AMERICAN  FEDERAL   GOVERNMENT 

The  CLERK.  Three  hundred  and  sixty-nine  Members  have  answered 
to  their  names ;  a  quorum  is  present.  We  are  now  ready  for  nominations 
for  Speaker. 

ELECTION   OF   SPEAKER 

Mr.  HEPBURN.  Mr.  Clerk,  I  am  directed  by  the  unanimous  vote  of 
the  Republican  Members  of  this  House  to  present  the  Hon.  Joseph  G. 
Cannon,  a  Representative-elect  from  the  State  of  Illinois,  as  their 
candidate  for  Speaker  of  this  Sixtieth  Congress.  [Loud  and  long- 
continued  applause  on  the  Republican  side.] 

Mr.  CLAYTON.  Mr.  Clerk,  I  nominate  for  Speaker  of  the  House  of 
Representatives  of  the  Sixtieth  Congress  of  the  United  States  the  Hon. 
John  Sharp  Williams,  a  Representative-elect  from  the  State  of  Missis- 
sippi. [Loud  and  long-continued  applause  on  the  Democratic  side.] 

The  CLERK.  Are  there  any  other  nominations?  If  not,  the  nomina- 
tions are  closed.  The  following  tellers  will  please  take  their  places  at  the 
desk:  Mr.  Heflin  of  Alabama,  Mr.  Rucker  of  Missouri,  Mr.  Wheeler 
of  Pennsylvania,  and  Mr.  Murdock  of  Kansas. 

[The  question  was  taken;  and  there  were  —  for  Mr.  Cannon,  207 
votes;  for  Mr.  Williams,  159  votes;  not  voting,  24.] 

Mr.  Cannon,  having  received  a  majority  of  all  the  votes  cast,  is  elected 
Speaker  of  the  Sixtieth  Congress.  [Applause.]  The  Clerk  will  appoint 
Mr.  Williams  of  Mississippi,  Mr.  Sulloway  of  New  Hampshire,  and 
Mr.  Ollie  M.  James,  of  Kentucky,  as  a  committee  to  escort  the  Speaker- 
elect  to  the  Chair.  [Applause.] 

[When  Mr.  Cannon  appeared  with  the  committee  designated,  the 
Members  of  the  House,  rising  in  a  body,  greeted  him  with  loud  and 
general  applause,  which  was  renewed  as  he  ascended  to  the  chair.] 

Mr.  WILLIAMS.  Fellow-Representatives,  the  second  to  the  highest 
office  in  the  United  States,  and  therefore  in  the  world,  is  the  office  of 
Speaker  of  the  American  House  of  Commons,  the  House  of 
Representatives . 

I  have  the  honor,  for  the  third  time  in  my  life,  not  to  introduce,  but  to 
present,  to  a  House  of  Representatives  of  the  Congress  of  the  United 
States  the  Hon.  Joseph  G.  Cannon,  of  Illinois,  as  its  Speaker.  [Prolonged 
applause.] 

The  SPEAKER.  Gentlemen  of  the  House  of  Representatives,  we  are 
to-day  organizing  the  Sixtieth  Congress,  marking  the  one  hundred  and 
eighteenth  milestone  in  the  history  of  government  by  the  people  under 
the  Constitution.  Our  predecessors  in  the  years  that  are  past  have  left 
to  us  an  example  of  wisdom,  moderation,  and  courage  that  has  never 
failed  to  preserve  the  ideals  and  the  interests  of  republican  government  in 
many  crises,  whether  of  peace  or  war,  adversity  or  prosperity. 

Each  generation  of  statesmen  has  had  its  own  peculiar  problems  and 


ORGANIZATION  AND   RULES   OF  THE  HOUSE      225 

its  own  particular  embarrassments.  No  problems  of  government  ever 
recur  in  exactly  the  same  aspects,  and  they  may  never  be  treated  in  exactly 
the  same  way.  The  formulas  of  action  in  one  exigency  may  never  be 
applied  safely  in  another.  Government,  so  far  as  it  relates  to  courses  of 
action,  has  no  fixed  precedents;  and  no  veneration  for  those  who  have 
gone  before  justifies  living  men  in  approaching  live  problems  with  pur- 
pose or  with  vision  circumscribed  by  the  limitations  of  the  past.  But  the 
fundamental  principles  of  free  government  are  eternal  and  unchanging, 
resting  on  the  will  and  responsibility  of  the  people,  and  are  put  in  action 
through  the  deliberations  of  conscientious  and  fearless  representatives  of 
that  will.  This  House  is  the  only  institution  under  our  Constitution 
where  that  will  of  the  people  may  be  expressed  with  a  fair  approximation 
to  scientific  accuracy.  [Applause.] 

Other  departments  of  the  Government  have  lofty  and  important 
functions,  but  to  this  House  alone  belongs  the  peculiar,  the  delicate,  and 
the  all-surpassing  function  of  interpreting  and  putting  in  definite  form 
the  will  of  the  people.  This  duty  we  must  perform  ourselves.  The  prin- 
ciples of  the  past  may  help  us  to  the  extent  of  showing  us  the  points  of  the 
compass;  but  beyond  that  we  must  depend  on  our  own  wisdom,  our 
own  constancy,  our  own  industry,  and  our  own  fidelity  to  duty. 

So  far  as  the  duty  of  organizing  this  House  shall  devolve  upon  me,  1 
shall  endeavor  to  perform  the  duty  in  a  way  to  justify  the  confidence 
which  your  selection  implies  and  to  promote  the  great  purposes  for  which 
we  are  assembled ;  but  the  duties  of  the  hour  rest  not  alone  on  myself. 
They  rest  on  each  one  of  you  individually ;  and  on  your  integrity,  wisdom, 
and  conservatism  the  people  are  relying  as  well  as  on  mine.  I  have  a 
right  to  expect  your  cooperation,  because  such  cooperation  will  be  your 
duty.  I  hope  also  that  as  we  go  on  I  may  have  it  because  of  my  efforts  to 
merit  your  confidence  and  good  will.  [Applause.] 

I  am  now  ready  for  the  oath. 


SWEARING  IN  THE   SPEAKER 

Mr.  Bingham,  the  Member  longest  in  continuous  service  in  the  House, 
was  named  by  the  Clerk  to  administer  the  oath  of  office  to  the  Speaker- 
elect;  and  the  oath  was  accordingly  administered. 


SWEARING  IN  OF   MEMBERS  AND   DELEGATES 

The  SPEAKER.  The  Clerk  will  call  the  roll  by  States  and  Territories, 
and  Members  and  Delegates,  as  their  names  are  called,  will  please  come 
forward  to  the  area  in  front  of  the  Clerk's  desk  and  take  the  prescribed 
oath  of  office. 

15 


226  AMERICAN  FEDERAL   GOVERNMENT 

The  Speaker  then  administered  the  oath  of  office  to  the  Members  and 
Delegates  presenting  themselves. 

Mr.  Butler  and  Mr.  Cocks  of  New  York  qualified  by  affirmation. 

[Then  followed  the  election  of  the  officers  of  the  House,  on  nomination 
by  the  two  great  political  parties,  those  of  the  opposition  being  of 
course  rejected.  The  officers  so  elected  came  to  the  bar  of  the  House 
and  the  oath  was  administered  to  them  by  the  Speaker.  Resolutions 
of  the  notification  to  the  President  of  the  United  States  and  to  the  Senate 
of  the  readiness  of  the  House  to  do  business  or  receive  communications 
were  made.  This  notification  is  effected  by  message  to  the  Senate  and 
by  a  committee  composed  of  the  committees  appointed  by  the  Senate 
and  House  of  Representatives  respectively.  A  resolution  to  provide  for 
the  distribution  of  rooms  in  the  House  office  building  and  Capitol  com- 
pleted the  necessary  introductory  measures  to  be  taken  for  getting  the 
House  into  working  order.  Then  follows  the  all-important  matter  of 
the  question  of  adoption  and  amendment  of  the  Rules.  The  traditional 
protest  against  the  concentration  of  power  in  the  Speaker's  hands,  and 
the  repression  of  individual  initiative  is  in  evidence.] 

RULES   OF   THE   SIXTIETH   CONGRESS 

Mr.  DALZELL.    Mr.  Speaker,  I  offer  the  following  resolution. 
The  Clerk  read  as  follows: 

Resolved,  That  the  rules  of  the  House  of  Representatives  of  the  Fifty-ninth 
Congress  be  adopted  as  the  rules  of  the  House  of  Representatives  of  the  Sixtieth 
Congress,  including  the  standing  orders  of  March  8  and  March  14,  1900 
(relating  to  consideration  of  pension  and  claim  bills  on  Fridays),  which  are 
hereby  continued  in  force  during  the  Sixtieth  Congress. 

Mr.  WILLIAMS.    Mr.  Speaker  — 

The  SPEAKER.  Does  the  gentleman  from  Pennsylvania  yield  to  the 
gentleman  from  Mississippi? 

Mr.  DALZELL.  I  will  yield  to  the  gentleman  from  Mississippi  five 
minutes. 

Mr.  WILLIAMS.  Mr.  Speaker,  of  course  I  have  no  desire  to  make  a 
useless  play  to  the  galleries.  I  know,  of  course,  that  the  resolution  is 
going  to  pass,  but  I  do  not  consider  it  consistent  with  the  past  record  of 
this  side  of  the  House  to  permit  it  to  pass  without  a  protest.  We  are  of  the 
opinion,  and  have  been  for  a  long  time,  that  entirely  too  much  power  is 
concentrated  in  the  hands  of  the  Speaker  of  the  House,  and  without  any 
party  spirit  at  all,  speaking  only  what  I  think  is  best  for  the  country  at 
large,  believing  if  my  party  were  in  the  majority  I  would  still  take  that 
same  view,  I  want  to  protest  against  the  adoption  of  the  rules  in  their 
present  drastic  form,  without  any  opportunity  to  the  Members  of  the 
House  to  propose  amendments  and  without  any  opportunity  for  the 


ORGANIZATION  AND  RULES  OF  THE  HOUSE       227 

House  itself  to  pass  upon  proposed  amendments.  We  will  of  course, 
vote  against  the  resolution. 

Mr.  Cooper  of  Wisconsin  rose. 

Mr.  DALZELL.  How  much  time  does  the  gentleman  from  Wisconsin 
want? 

Mr.  COOPER  of  Wisconsin.    Five  minutes. 

Mr.  DALZELL.  I  will  yield  five  minutes  to  the  gentleman  from 
Wisconsin. 

Mr.  COOPER  of  Wisconsin.  Mr.  Speaker,  like  the  gentleman  from 
Mississippi,  I  have  no  desire  to  consume  the  time  of  the  House  in  an 
argument  against  the  adoption  of  these  rules.  It  was  impossible  for  me 
to  be  present  at  the  caucus  on  Saturday  night.  I  did  not  arrive  in  the 
city  until  that-evening.  If  I  had  been  at  the  caucus  I  would  have  opposed 
the  adoption  of  this  rule. 

I  agree  with  the  gentleman  from  Mississippi  that  there  is  altogether 
too  much  power  concentrated  in  the  Speaker  of  the  House  of  Repre- 
sentatives. [Applause  on  the  Democratic  side.]  It  is  more  power, 
gentlemen,  than  ought  to  be  given  to  any  man  in  any  government  that 
pretends  to  be  republican  in  form  and  democratic  in  spirit.  [Applause 
on  the  Democratic  side.] 

Now,  in  saying  this  I  do  not  wish  to  be  understood  as  uttering  a  word 
by  way  of  criticism  of  the  very  distinguished  and  honorable  gentleman 
who  has  discharged  the  duties  of  Speaker  of  the  past  two  Congresses  with 
such  great  success.  But,  as  the  gentleman  from  Mississippi  has  just  said 
he  would  oppose  this  if  the  House  were  Democratic,  I  oppose  it  not 
because  it  is  a  Republican  House,  but  because  the  power  given  to  the 
Speaker  under  these  rules  is  unrepublican  and  undemocratic.  [Applause 
on  the  Democratic  side.] 

To  show  that  that  is  true,  I  call  the  attention  of  the  House  and  candid 
listeners  and  readers  everywhere  to  these  facts :  That  the  Speaker  of  the 
House  of  Representatives  has  the  sole  power  of  recognition  of  those  who 
rise  on  the  floor ;  he  appoints  all  the  committees,  including  all  the  chair- 
men ;  he  appoints  the  Committee  on  Rules,  which,  in  conjunction  with 
the  other  rules,  practically  enables  the  Committee  on  Rules  to  dictate 
what  legislation  shall  come  before  the  House;  he  is  himself  ex  omcio 
the  chairman  of  the  Committee  on  Rules,  and  ever  since  I  have  been 
here  there  has  never  been  a  Speaker  but  who  appointed  two  men  with 
him  of  the  majority  party  constituting  the  majority  of  the  committee, 
who  are  with  him  in  everything  that  comes  before  that  committee. 

Therefore  the  Speaker  becomes  practically  the  Committee  on  Rules. 
[Laughter  on  the  Democratic  side.]  That  was  so  in  a  Democratic  House, 
gentlemen,  when  Mr.  Speaker  Crisp  was  here.  [Laughter  on  the  Republi- 
can side.]  That  has  been  so  in  a  Republican  House  ever  since. 

Now,  when  the  Committee  on  Rules  reports  a  proposition,  every  man 
on  the  floor  knows  that  the  Speaker  wants  it  adopted  nine  times  out  of 


228  AMERICAN   FEDERAL   GOVERNMENT 

ten,  where  it  is  of  any  importance,  and  we  all  know  his  power,  which 
compels  us  to  go  into  his  room  if  we  wish  to  ask  to  be  recognized  for 
unanimous  consent.  [Applause  on  the  Democratic  side.]  We  all  know 
that  we  can  not  get  a  bill  passed  —  every  man  on  the  floor  does,  Republi- 
can or  Democratic  —  by  unanimous  consent  unless  the  Member  pre- 
senting it  first  goes  to  the  private  chamber  of  the  Speaker  and  asks  to  be 
recognized.  The  Speaker  does  not  have  to  give  his  reasons  before  the 
House  for  any  objections  he  may  have.  He  does  not  rise  upon  the  floor 
but  in  his  private  chamber  he  objects.  I  wish  to  say  that  the  present 
Speaker  of  the  House  has  always  treated  me  with  the  utmost  courtesy 
and  kindness.  A  former  Speaker  of  this  House  compelled  me  to  go  to 
his  room  at  one  time.  I  went  there  to  present  a  bill  which  provided 
simply  for  the  changing  of  the  material  which  was  to  go  into  a  public 
building  and  which  had  been  recommended  to  him  in  a  letter  from  the 
office  of  the  Supervising  Architect.  I  did  not  know  that  that  letter  had 
been  written  to  him ;  I  did  not  ask  that  it  should  be  written  to  him.  It 
was  a  voluntary  letter  and  a  voluntary  suggestion  upon  the  part  of  the 
Architect.  I  went  to  the  Speaker's  chamber.  I  had  refused  on  a 
former  occasion  to  do  his  bidding.  When  I  went  to  his  room  he  said, 
"I  will  see  about  that;  come  in  again."  I  went  in  again.  He  did  not 
ask  me  to  sit  down.  He  said,  "I  do  not  think  I  can  do  that;  I  do  not 
want  to  do  that;  I  can  not  allow  that  to  come  up."  Not  only  that,  but 
he  compelled  me  to  stand  there,  and  when  a  perfect  stranger  came  in, 
he  sat  him  down  in  his  seat  and  turned  his  back  upon  me.  [Laughter.] 

A  very  important  rule  had  previously  come  before  the  House  of 
Representatives.  That  same  Speaker  had  stopped  me  at  the  entrance 
there  and  put  his  hand  upon  my  breast  and  said,  "Mr.  Cooper,  you  will 
oblige  me  very  much  by  not  opposing-  this  rule."  That  rule  related  to  the 
Pacific  Railroad  funding  bill.  I  did  oppose  it.  I  was  the  only  Republican 
of  the  minority  of  the  committee  that  reported  against  the  bill ;  the  rule 
was  modified,  and  for  the  first  time  in  thirty  years  the  Pacific  Railroad 
people  lost  their  bill. 

That  same  Speaker  refused  practically  to  recognize  me  for  fotir  or 
five  years  for  any  purpose,  and  never  when  he  could  help  it. 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  COOPER  of  Wisconsin.    May  I  have  three  minutes  more? 

Mr.  BURLESON.  Mr.  Speaker,  I  ask  unanimous  consent  that  the  time 
of  the  gentleman  be  extended. 

The  SPEAKER.  The  gentleman  from  Pennsylvania  [Mr.  Dalzell]  has 
charge  of  the  time. 

Mr.  DALZELL.  Mr.  Speaker,  I  yield  three  minutes  more  to  the 
gentleman  from  Wisconsin. 

Mr.  COOPER  of  Wisconsin.  Mr.  Speaker,  one  more  thing.  That  this 
is  too  much  power  ever  to  give  to  one  man  in  the  House  of  Representa- 
tives is  demonstrated  by  this  fact:  If  the  Vice-President  of  the  United 


ORGANIZATION  AND  RULES  OF  THE  HOUSE       229 

States  had  a  similar  power,  then  the  Vice-President  would  appoint  all  of 
the  committees  of  the  Senate.  He  would  appoint  the  Committee  on 
Rules  of  that  body  and  have  the  sole  power  of  recognition.  So  that  the 
Speaker  of  the  House  of  Representatives  and  the  Vice-President  of  the 
United  States  together  could  agree  practically  to  allow  or  not  to  allow 
legislation  to  come  up  before  either  Chamber. 

Of  course  it  is  said  that  the  House  can  at  any  time  bring  up  legislation, 
but  gentlemen  know  that  they  have  repeatedly  heard  said  on  this  floor, 
not  alone  in  the  last  Congress,  but  in  other  Congresses,  "I  do  not  like 
this  proposition,  but  the  Speaker  wants  it." 

My  position  is  this:  That  the  leader  of  this  House  should  be  on  the 
floor  and  not  in  the  chair.  I  say  as  a  matter  of  practical  experience  that 
the  very  distinguished  and  very  able  gentleman  who  has  the  chair  could 
render  his  country  greater  service  leading  the  Republicans  upon  the 
floor  than  he  renders  them  as  the  Speaker  of  the  House.  I  think  if  the 
distinguished  gentleman  from  Maine,  the  parliamentary  clerk,  who  now 
stands  at  the  right  hand  of  the  Speaker,  were  elected  Speaker  to  sit  there 
simply  as  a  presiding  officer  after  the  manner  of  the  speaker  of  the  House 
of  Commons,  and  the  distinguished  gentleman  from  Illinois  [Mr.  Cannon] 
who  is  now  the  Speaker  of  this  House,  were  upon  this  floor  leading  us 
under  a  system  of  rules  which  would  enable  the  House  itself  to  elect  a 
Committee  on  Rules,  at  the  head  of  which  would  be  the  distinguished 
gentleman  from  Illinois  [Mr.  Cannon],  much  better  business  would  be 
done  in  the  way  of  legislation  on  this  floor. 

I  think  it  is  also  unfair  to  adopt  the  pending  resolution,  because  there 
are  about  100  new  Members,  and  they  have  not  seen  the  working  of  the 
rules  and  know  little  about  them.  But  of  course  the  caucus  having 
adopted  what  it  did  adopt  the  other  night,  it  does  not  become  me  to  vote 
against  the  resolution.  I  may  say  that  I  can  not  consistently  as  a  Republi- 
can —  for  I  understand  that  the  Republicans  of  the  House  by  unanimous 
vote  adopted  this  rule  in  caucus,  and  that  the  caucus  was  properly  called, 
although  I  did  not  know  it  —  I  can  not,  as  I  say,  consistently  vote  against 
the  adoption  of  the  resolution. 

Mr.  De  Armond  rose. 

The  SPEAKER.  Does  the  gentleman  from  Pennsylvania  yield  to  the 
gentleman  from  Missouri? 

Mr.  DALZELL.    How  much  time  does  the  gentleman  want? 

Mr.  DE  ARMOND.  Mr.  Speaker,  I  would  like  to  know  if  I  can 
not  be  recognized  in  my  own  right  as  a  Member  of  the  House  of  Repre- 
sentatives? [Applause  on  the  Democratic  side.] 

The  SPEAKER.  The  gentleman  from  Missouri  is  informed  by  the 
Chair  that  the  gentleman  from  Pennsylvania  [Mr.  Dalzell]  is  entitled  to 
the  floor,  and  at  this  time  the  gentleman  from  Pennsylvania  is  privileged 
to  yield  if  the  gentleman  sees  proper  to  do  so  and  the  gentleman  from 
Missouri  sees  proper  to  accept  the  time. 


230  AMERICAN  FEDERAL   GOVERNMENT 

Mr.  DALZELL.  I  am  willing  to  yield  to  the  gentleman.  How  much 
time  does  the  gentleman  desire? 

Mr.  DE  ARMOND.    About  twenty  minutes. 

Mr.  DALZELL.    Oh,  I  cannot  yield  that  much. 

Mr.  DE  ARMOND.    Mr.  Speaker,  I  would  be  glad 

Mr.  DALZELL.    I  yield  ten  minutes  to  the  gentleman. 

Mr.  DE  ARMOND.  Mr.  Speaker,  I  would  be  glad  to  ask  the  gentleman 
from  Pennsylvania  to  inform  me  and  also  inform  the  House  what  is  there 
pressing  that  he  can  not  spare  that  much  time  now? 

Mr.  DALZELL.  I  will  yield  the  gentleman  twenty  minutes.  [Applause 
on  the  Democratic  side.] 

Mr.  DE  ARMOND.  Mr.  Speaker,  I  listened  a  very  short  time  ago,  as  I 
have  no  doubt  the  other  Members  of  the  House  did,  to  the  carefully 
worded  and  blandly  sounding  address  from  the  Speaker-elect,  in  which, 
among  other  things,  the  Members  of  the  House  and  the  people  of  the 
country  were  told  that  here  in  this  House  is  lodged  the  power  of  the  people 
to  make  known  their  wishes  and  to  execute  their  will.  It  sounded  well ; 
it  was  expressed  handsomely.  But  a  few  minutes  have  elapsed  since  that 
performance,  and  now  here,  with  time  so  precious  that  only  a  few  min- 
utes can  be  conceded  to  anybody  to  express  an  opinion  upon  the  subject, 
it  is  proposed  to  tie  and  shackle  the  House  by  rules  about  which  a  good 
many  know  nothing,  and  about  which  a  good  many  others  know  a  great 
deal.  Talk  about  the  people  having  here  representation  and  about  here 
the  will  and  wish  of  the  American  people  being  executed,  when  here,  at 
once,  out  of  hand,  blindly,  without  consideration,  without  reading  the 
code  of  rules,  designed,  cunningly  designed,  to  put  the  Representatives  in 
this  House,  the  membership  of  it,  and  the  mighty  interests  of  the  people 
of  this  nation  in  the  sacred  keeping  of  the  Speaker !  What  is  the  occasion 
for  hurry  ?  You  are  determined  to  adopt  these  rules.  Why  not  at  least 
have  the  grace  and  decency  to  permit  a  little  discussion  and  give  a  little 
time  for  their  consideration;  for  the  work  predestined,  cut  and  dried, 
to  be  put  through ?  Why  not?  [Applause  on  the  Democratic  side.]  The 
greatest  reform  needed  in  this  land  is  required  here.  The  crying  abuse  of 
all  abuses,  against  which  the  citizenship  of  this  Republic  protests  and  long 
has  protested  in  vain,  is  the  subversion  of  the  rights  of  the  individual 
Members  of  this  body.  [Applause  on  the  Democratic  side.]  Here  we 
stand  under  the  Constitution  as  equals,  each  one  of  us  commissioned  by 
the  sovereign  citizens  of  his  district  to  come  here  and  represent  that  dis- 
trict and  its  interests,  and  as  a  patriotic  American  citizen,  a  Member  of 
the  Congress  of  the  United  States,  to  represent  and  to  voice  as  best  he 
can  the  interests  and  rights  and  promote  as  far  as  he  can  the  welfare  of 
the  whole  people  of  these  United  States,  and  yet  the  first  formal  act  is  to 
throttle  and  gag  and  bind  the  membership  of  this  House  —  to  make  it 
subservient  in  fact,  whether  in  deed  some  of  you  realize  it  or  not,  to  the 
autocratic  will  of  the  Speaker. 


ORGANIZATION  AND  RULES  OF  THE  HOUSE       231 

Now,  we  have  no  rules.  Here  is  a  moment,  here  is  a  brief  space  of 
time  —  would  to  God  it  could  be  prolonged  and  enlarged  —  when  there 
is  some  semblance  of  freedom,  when  there  is  something  like  equality 
upon  this  floor,  and  yet  even  in  this  hour  within  which  this  Congress  has 
been  assembled  and  organized,  the  period  of  sixty  minutes,  a  man  can 
not  speak  in  opposition  to  this  legislative  outrage  except  by  permission. 
He  can  not  be  recognized  in  his  own  right  as  an  American  citizen.  He 
can  not  be  recognized  as  a  chosen  Representative,  charged  with  the 
duties  and  freighted  with  the  responsibility  of  his  position,  unless  it  be 
with  the  permission  of  some  other  Member,  who  possesses  no  rights  su- 
perior to  his  own.  [Applause  on  the  Democratic  side.]  For  one,  repre- 
senting an  independent  constitutency  of  unshackled  men,  men  neither 
upon  whose  limbs  nor  spirits  are  the  gyves  of  tyranny,  I  avail  myself  of 
even  this  poor  permission,  which  I  ought  not  to  be  forced  to  ask,  and  but 
for  the  necessities  of  the  situation  would  not  accept,  to  express  my  pro- 
test. I  know  it  is  vain  now  and  here,  but  I  have  faith  in  the  God  who  rules 
over  the  nation,  and  I  have  faith  and  confidence  in  the  patriotism  and 
manhood  of  American  citizenship  upon  which  to  base  the  hope  that  the 
time  is  not  far  distant  when  such  protests  as  this  will  cease  to  be  necessary 
because  the  evils  against  which  they  are  raised  will  have  passed  away. 
[Applause  on  the  Democratic  side.] 

Why  the  hurry  for  the  adoption  of  this  code  of  rules?  Why  do  you 
wish  to  enslave  yourselves  and  enslave  us  ?  Are  you  proposing  to  go  back 
to  your  constituencies,  as  manly  as  they  are  independent  American  citi- 
zens, and  when  they  ask  you  why  you  did  not  do  this  or  why  you  suffered 
the  doing  of  that,  do  you  propose,  as  cowards  and  cravens,  to  defend 
yourselves  and  apologize  upon  the  mere,  miserable,  mean  pretext  that 
these  rules  hampered  you  and  controlled  you  and  that  you  could  not  do 
anything  else? 

You  can  do  something  now.  Now  is  the  time  of  times  for  the  American 
Representative  to  stand  up  proudly  in  the  power  and  glory  of  his  high 
office.  [Applause  on  the  Democratic  side.]  It  is  a  high  office.  Upon 
the  average,  we  represent  there,  or  ought  to  be  permitted  to  represent,  if 
the  Constitution  were  enforced  and  observed,  and  would  then  represent, 
on  the  average,  about  200,000  American  citizens.  Not  one,  not  an  iota 
of  the  rights  of  the  citizenship  which  I  represent,  of  the  citizenship  of 
any  district  in  this  Union,  North  or  South,  East  or  West,  Republican  or 
Democratic,  shall  be  cut  away  or  frittered  away  or  bargained  away,  in 
what  amounts  in  effect,  however  you  may  gloss  it  and  veneer  it,  to  ab- 
solute surrender  into  abject  slavery,  without  at  least  a  feeble  protest 
from  me. 

Why  not  refer  the  rules  which  you  propose  to  a  committee  ?  Why  not 
give  opportunity  for  the  consideration  of  proposed  amendments  ?  Why 
hasten  pellmell  into  slavery?  You  will  find  these  bonds  galling.  You 
will  find  the  time  coming  when  your  manhood  may  long  to  break  the 


232  AMERICAN  FEDERAL   GOVERNMENT 

shackles  for  the  time  being  and  intuitively  assert  itself  when  chafing 
under  the  bonds  which  you  put  upon  it.  Behold  the  spectacle !  There 
are  no  rules  here  at  all.  And  yet  in  this  membership  of  three  hundred 
and  ninety-one,  the  gentleman  from  Pennsylvania,  the  right  hand  of  the 
Speaker  —  the  man  standing  next  to  him  upon  the  Committee  on  Rules, 
echoing  his  every  wish,  voicing  his  every  sentiment,  and  voting  to  carry 
out  his  every  purpose  —  is  recognized  here  upon  this  floor,  and  no  man 
is  to  be  given  permission  even  to  say  a  solitary  word  in  criticism  or  in  op- 
position unless  the  gentleman  from  Pennsylvania  kindly  and  generously 
concedes  to  him  a  little  modicum  of  time !  [Applause  on  the  Democratic 
side.]  I  know  well  that  if  the  gentleman  from  Pennsylvania  pursues 
the  course  which  I  presume  he  will  pursue,  and  which  has  been  fol- 
lowed heretofore,  he  will  avail  himself  of  the  opportunity  to  move  the 
previous  question,  cutting  off  all  debate. 

But  for  that  I  would  scorn,  under  these  circumstances  and  at  this 
stage  of  proceedings,  to  accept  a  minute  or  second  of  time  within  his  con- 
trol, but  would  insist  upon  my  right  to  time  as  a  Representative  from  the 
Sixth  district  of  Missouri.  [Applause  on  the  Democratic  side.]  I  know 
full  well  that  the  gentleman  from  Pennsylvania  [Mr.  Dalzell]  before  an 
hour  shall  have  expired  may  be  expected  to  move  the  previous  question, 
and  if  we  are  to  judge  of  what  is  to  happen  by  what  has  happened  re- 
peatedly in  the  House,  a  partisan  majority  behind  him  will  sustain  that 
resolution  to  cut  off  debate  and  come  to  an  immediate  vote,  so  that  the 
man  who  says  anything  —  and  it  must  be  said  hurriedly  and  under  ad- 
verse circumstances  —  must  say  it  by  reason  of  the  gracious  permission 
accorded  to  him  under  the  kind  ministration  of  the  Speaker  by  the  gen- 
tleman from  Pennsylvania  [Mr.  Dalzell]. 

Adopt  your  rules,  if  you  will,  but  note  this,  and  have  warning  of  it  now, 
that  there  are  some  here  who  will  not  be  tamely  tied  and  who  in  the  days 
to  come,  who  in  the  legislative  history  of  this  Congress,  will  avail  them- 
selves, as  occasion  may  offer  —  and  it  is  not  to  offer  very  frequently  —  of 
the  little  opportunity  that  it  is  beyond  your  power  to  take  from  them,  and 
that  we  shall  appeal  beyond  this  tyrannous  decision,  beyond  this  sur- 
render, this  humiliating  surrender,  of  the  rights  of  the  American  Repre- 
sentative. We  shall  appeal  over  your  head,  shall  appeal  through  your 
rules,  shall  appeal  in  the  mighty  right  of  the  American  Representative  of 
the  mighty  sovereign,  the  American  citizen.  And  we  shall  hope  that  the 
time  is  not  far  distant  when  those  who  are  chosen  to  represent  free  men 
in  the  greatest  legislative  body,  as  we  frequently  hear,  upon  the  face  of 
the  earth  shall  stand  forth  panoplied  in  the  glory  of  a  noble  trust,  pos- 
sessed of  the  powers  of  the  real  Representative,  not  by  permission  of  any- 
body, responsible  alone  to  his  God  above  him  and  to  his  constituents 
behind  him.  [Loud  applause  on  the  Democratic  side.] 

Mr.  DALZELL.  Mr.  Speaker,  I  can  not  conceive  of  anything  more  un- 
necessary than  a  discussion  of  the  rules  that  are  now  offered  for  adoption 


ORGANIZATION  AND  RULES  OF  THE  HOUSE       233 

at  this  day.  They  have  been  discussed  time  and  again  in  this  House  and 
elsewhere  —  in  the  magazines,  in  the  newspapers  —  and  they  have  been 
vindicated  by  their  results.  Prior  to  the  Fifty-first  Congress  the  rules  of 
the  House  of  Representatives  had  remained  for  a  great  number  of  years 
unchanged.  These,  our  rules,  are  an  evolution.  Rule  after  rule  has  gone 
upon  the  book  in  answer  to  some  present  emergency.  The  rules  that 
prevailed  prior  to  the  Fifty-first  Congress  were  so  constructed  as  to  place 
all  the  power  of  the  House  in  the  hands  of  the  minority.  In  that  Con- 
gress, which  was  presided  over  by  that  great  Speaker  and  illustrious 
statesman,  Thomas  B.  Reed  [loud  applause  on  the  Republican  side], 
the  rules  were  amended  by  a  committee  consisting  of  William  McKinley, 
Joseph  G.  Cannon,  and  J.  G.  Carlisle.  [Applause.]  Of  the  rules  then 
on  the  book  but  a  very  few  met  with  any  change.  The  only  substantial 
changes  that  were  made  were  those  with  respect  to  counting  a  quorum, 
which  placed  in  the  hands  of  the  majority  —  where  it  belongs  —  the 
power  of  this  body,  those  that  related  to  the  order  of  business,  and  that 
rule  which  provided  that  100  should  constitute  a  quorum  in  the  Com- 
mittee of  the  Whole.  With  these  exceptions  the  rules  that  you  are  asked 
to  adopt  are  substantially  the  rules  that  have  been  in  force,  with  their 
additions  from  time  to  time,  since  the  foundation  of  the  Government. 

Now,  these  rules  are  not  only  the  rules  of  the  Fifty-ninth  Congress; 
they  are  not  only  the  rules  of  the  Fifty-first  Congress,  both  of  which  were 
Republican  Congresses,  but  they  are  substantially  the  rules  of  the  Fifty- 
second  and  Fifty-third  Congresses  —  Democratic  Congresses,  presided 
over  by  a  Democratic  Speaker.  [Applause  on  the  Republican  side.] 

So  far  as  the  power  of  the  Committee  on  Rules  is  concerned,  it  received 
its  impetus  and  the  power  it  now  possesses  under  the  regime  of  your  Dem- 
ocratic Speaker,  Mr.  Charles  Crisp.  So  far  as  the  power  of  the  Speaker 
is  concerned,  it  is  to-day  as  it  has  been  for  a  hundred  years.  It  has  been 
his  power  for  a  hundred  years  to  recognize  or  to  fail  to  give  recognition. 
It  has  been  his  power  for  a  hundred  years  to  appoint  the  committees  of 
this  House ;  and  it  is  nothing  new  now  to  find  some  Member  who  has 
been  disappointed  in  his  recognition  by  the  Speaker  for  the  purpose  of 
passing  some  measure  that  the  Speaker  thought  ought  not  to  oass  to  get 
up  on  this  floor  and  denounce  the  power  of  the  Speaker. 

Now,  Mr.  Speaker,  this  side  of  the  House,  the  majority,  is  charged 
with  the  responsibility  for  legislation.  This  side,  thus  charged  with  the 
responsibility,  has  the  right  to  prescribe  the  rules  under  which  legisla- 
tion shall  be  had.  It  is  no  secret  at  all  that  in  the  caucus  of  the  Republi- 
can Members  of  the  House  these  rules  were  directed  to  be  adopted,  as 
they  have  been  in  every  Congress  since  the  Fifty-first;  and  as  I  said  a 
few  moments  ago,  in  the  outset,  they  are  vindicated  and  their  wisdom 
has  been  proved  by  some  of  the  best  legislation  in  the  history  of  the  Re- 
public now  on  the  statute  books,  put  there  by  virtue  of  these  rules,  and 
some  of  the  best  legislation  in  the  future  is  likely  to  be  put  on  the  statute 


234  AMERICAN   FEDERAL   GOVERNMENT 

books  by  virtue  of  these  same  rules.  Lest  my  friend  from  Missouri  should 
be  disappointed,  I  now  ask  the  previous  question.  [Laughter.] 

The  SPEAKER.  Will  the  gentleman  from  Pennsylvania  for  a  moment 
withhold  the  demand  for  the  previous  question? 

Mr.  DALZELL.    Certainly. 

The  SPEAKER.  The  Chair  desires  to  add  that  the  rules  as  yet  have 
not  been  adopted,  and  we  are  proceeding  under  general  parliamentary 
usage,  the  gentleman  from  Pennsylvania  having  the  floor.  When  the 
gentleman  from  Pennsylvania  yields  the  floor,  if  he  does  yield  it,  then  any 
other  gentleman  is  entitled  to  the  floor.  Holding  the  floor,  the  gentleman 
indicated  that  he  would  yield  twenty  minutes  to  the  gentleman  from  Mis- 
souri. The  Chair  took  that  to  be  in  substance  notice  to  the  gentleman 
from  Missouri  that,  yielding  to  him,  he  still  holds  the  floor,  that  he  might 
move  the  previous  question  on  resuming  the  floor.  That  is  the  effect,  as 
the  Chair  understands  it,  of  the  gentleman  yielding  to  the  gentleman  from 
Wisconsin,  and  also  to  the  gentleman  from  Missouri,  under  general  par- 
liamentary usages. 

Now,  the  Chair  may  be  indulged  one  minute  further.  The  Chair,  the 
Speaker  of  the  House,  is  a  Member  of  the  House  the  same  as  any  other 
Member.  Unanimous  consent  being  asked,  it  would  not  be  granted 
should  any  Member  object.  The  usage  in  many  Congresses  in  the  past 
was  that  the  Chair  would  submit  the  request  to  the  House ;  and  it  is  an 
open  secret  to  gentlemen  who  have  served  in  some  of  the  former  Con- 
gresses that  the  Chair,  keeping  track  of  the  business  of  the  House,  as  the 
Speaker  and  at  the  same  time  exercising  his  right  as  a  Member,  would 
often  indicate  to  some  Member  upon  the  floor,  by  messenger  or  otherwise, 
that  he  desired  an  objection  to  be  made.  The  Chair  has  seen  that  fre- 
quently occur  under  both  Democratic  and  Republican  Speakers.  The 
present  occupant  of  the  chair,  ever  since  he  has  occupied  that  position, 
has  thought  the  better  way  and  the  more  manly  and  fairer  way  was  to 
exercise  his  right  as  a  Member  to  object  to  a  request  for  unanimous 
consent.  Therefore  the  practice  has  grown  up  that  gentlemen  see  the 
Speaker,  and  if  he  has  objections  then  he  invariably  says  that  it  is 
useless  to  recognize  the  Member  for  unanimous  consent,  because  if  no- 
body else  objected  the  Chair  in  his  capacity  as  a  Member  of  the  House 
would  object.  [Applause  on  the  Republican  side.] 

Under  the  rules,  if  adopted,  the  Chair  begs  to  call  the  attention  of  the 
gentlemen  to  the  fact  that  the  right  of  a  Member  to  be  recognized  can  in 
most  instances  not  be  denied  by  the  Chair.  There  are  a  large  number  of 
motions  which  are  privileged  in  their  nature,  and  a  question  of  privilege, 
first,  and  a  privileged  motion,  second,  halts  all  business  before  the  House, 
and  the  Chair  has  no  discretion.  Gentlemen  who  have  had  service  in 
the  House  will  recollect  that  those  motions  are  many. 

The  Chair  desires  to  state  again  that  the  Speaker  of  the  House  is  the 
servant  of  the  House,  and  it  is  in  the  power  of  the  House  of  Representa- 


ORGANIZATION  AND  RULES  OF  THE  HOUSE       235 

tives  as  a  question  of  the  highest  privilege  to  at  any  time  elect  a  successor 
to  any  Member  of  that  body  who  may  be  holding  this  place.  One  further 
observation.  When  special  orders  or  special  rules  are  suggested,  as  they 
have  been  under  all  administrations,  Democratic  and  Republican,  at 
least  for  twenty  years,  those  orders  or  rules  can  not  be  vitalized  until  a 
majority  of  the  House  has  adopted  them  under  the  Constitution  and  the 
Rules  of  the  House. 

The  question  is  on  the  motion  of  the  gentleman  from  Pennsylvania  that 
the  previous  question  be  ordered. 

Mr.  DE  ARMOND.  Mr.  Speaker,  I  would  submit  a  parliamentary 
inquiry,  if  I  may  be  indulged. 

The  SPEAKER.    The  gentleman  will  state  it. 

Mr.  DE  ARMOND.  That  is,  whether  or  not  the  Speaker  will  permit 
the  House  to  act  upon  propositions  and  dispose  of  measures  when  a  ma- 
jority of  the  House  requests  him  to  do  so. 

The  SPEAKER.  When  the  majority  acts  under  the  Constitution  and 
the  laws  no  Speaker  would  dare  to  fail  to  obey  the  will  of  the  majority. 
[Applause  on  the  Republican  side.] 

Mr.  DE  ARMOND.    Mr.  Speaker 

The  SPEAKER.    For  what  purpose  does  the  gentleman  rise? 

Mr.  DE  ARMOND.  The  gentleman  rises  for  the  purpose  of  getting  an 
answer  to  his  parliamentary  inquiry,  and  for  the  purpose  of  putting 
another  question. 

The  SPEAKER.  If  the  gentleman  is  not  answered,  it  is  the  misfortune 
of  the  Chair  or  the  misfortune  of  the  peculiar  state  of  mind  of  the 
gentleman.  The  gentleman  from  Pennsylvania  moves  the  previous 
question. 

Mr.  DE  ARMOND.  But,  Mr.  Speaker,  I  would  like  to  submit  this  par- 
liamentary inquiry. 

The  SPEAKER.    The  gentleman  will  state  it. 

Mr.  DE  ARMOND.  I  wish  to  state  that  it  is  not  the  misfortune  of  any 
peculiar  state  of  mind  on  the  part  of  the  gentleman  from  Missouri  who 
submitted  the  inquiry.  In  times  past  a  majority  have  made  a  request  for 
the  consideration  of  this  or  that  measure,  and  consideration  has  been 
denied.  What  I  am  asking  now  is  whether  or  not  if  a  majority  of  the 
membership  of  the  House  requests  the  Speaker  to  permit  action  upon  a 
particular  matter,  he  will  or  will  not  do  it  —  and  it  is  not  necessary  to 
refer  to  the  Constitution  in  making  the  answer.  [Applause  on  the  Demo- 
cratic side.] 

The  SPEAKER.  The  Chair,  so  far  as  the  Chair  knows  or  has  any 
knowledge,  desires  to  say  to  the  gentleman  from  Missouri  [Mr.  De 
Armond]  that  in  the  knowledge  and  belief  of  the  Chair  the  gentleman  is 
mistaken.  The  will  of  the  majority  always,  for  thirty-four  years  to  my 
knowledge,  has  been  law  unto  the  Speaker. 

Mr.  Williams  rose. 


236  AMERICAN  FEDERAL  GOVERNMENT 

Mr.  DALZELL.  I  can  not  yield  any  further,  Mr.  Speaker.  I  demand 
the  previous  question. 

The  SPEAKER.    The  question  is  on  ordering  the  previous  question. 

The  question  was  taken. 

Mr.  WILLIAMS.  Mr.  Speaker,  I  think  we  better  have  the  yeas  and 
nays.  I  demand  the  yeas  and  nays. 

The  yeas  and  nays  were  ordered. 

The  question  was  taken,  and  there  were  —  yeas  199,  nays  163,  an- 
swering "present"  3,  not  voting  23. 


DEFENSE  OF  THE  RULES1 

[The  frequent  criticism  passed  upon  the  rules  of  the  House  of  Representatives 
led  Mr.  Dalzell  to  make  the  following  defense  of  them.  Whenever  the  authority 
of  the  Speaker  or  the  leaders  is  attacked,  they,  as  is  done  in  this  case,  always 
advance  the  argument  that  they  are  simply  representing  the  majority  and  that 
their  power  stands  and  falls  with  the  will  of  the  majority  in  the  House.] 

MR.  DALZELL.  There  are  few  subjects  of  public  discussion  about 
which  there  is  more  unjust  criticism  —  I  might,  without  exaggeration 
say,  unjust  abuse  —  than  the  rules  of  the  National  House  of  Repre- 
sentatives. The  criticism  and  abuse  come  largely  from  Members  of 
the  House  when  in  the  minority,  and  from  newspapers  and  magazine 
writers,  and  some  others  of  whom,  without  unfairness,  it  may  be  said 
that  they  have  very  little  knowledge  or  intelligent  conception  of  what 
they  are  writing  or  talking  about.  Indeed,  I  think  it  may  be  truly  said 
that  there  are  comparatively  few  Members  of  the  House  itself,  much  less 
outsiders,  who  have  any  real  knowledge  of  the  rules.  The  rules  are 
simple  enough  and  entirely  logical,  but  to  the  majority  of  Members  of 
the  House  who  have  no  special  ambition  to  familiarize  themselves  with 
them  they  seem  complicated. 

There  is  nothing  new  in  this  protest  against  the  rules.  It  is  human 
nature  to  be  uneasy  under  restraint,  and  in  all  Congresses,  even  among 
the  first,  when  the  membership  was  small  and  the  rules  were  simple, 
complaint  was  heard  as  now  from  those  who  could  not  have  their 
own  way. 

The  rules  of  the  National  House  of  Representatives  are  not  the  con- 
ception of  any  one  man  or  set  of  men ;  they  are  not  the  product  of  any 
one  Congress  or  of  any  combination  of  Congresses ;  they  are  an  evolu- 
tion, the  outgrowth  of  the  parliamentary  experience,  necessities  and 
exigencies  of  all  the  hundred  years  and  more  of  our  Congressional  life. 
The  book  of  rules  contains  no  rule  that  had  not  a  reasonable  necessity 
for  its  adoption  in  the  first  instance  and  has  not  a  like  necessity  for  its 
continuance  now.  As  a  whole  the  rules  are  so  made  as  to  render  possible 

1  Congr.  Record,  March  18,  1906.     (Reported  March  23.) 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      237 

the  most  expeditious  accomplishment  in  the  wisest  way  of  the  legisla- 
tive business  of  our  ninety  millions  of  American  people. 

An  impartial  examination  of  them  will  show  that  the  power  of  recog- 
nition popularly  attributed  to  the  Speaker  as  autocratic  is  grossly  ex- 
aggerated; that  that  power,  in  point  of  fact,  so  far  as  the  rules  are 
concerned,  is  limited ;  and  that  the  apparent  restrictions  upon  individual 
initiative,  so  far  as  they  exist  at  all,  are  due  not  to  the  rules,  but  to  the 
character  of  the  House  as  now  constituted,  and  to  the  exigencies  of  the 
public  business. 

A  brief  review  of  the  history  of  the  rules  will  serve  to  demonstrate  the 
truth  of  this  statement. 

There  have  been  two  divisions  of  the  rules  within  the  last  thirty  years. 

In  the  Forty-sixth  Congress  (1880)  the  rules  were  revised  under  the 
direction  of  the  Committee  on  Rules,  consisting  of  Speaker  Randall  and 
Messrs.  Stephens,  Blackburn,  Garfield,  and  Frye.  The  changes  then 
made  consisted  mainly  in  dropping  a  number  of  rules  that,  by  reason  of 
changed  conditions  had  become  obsolete,  in  consolidating  a  number  of 
others  and  changing  their  arrangement,  and  in  the  introduction  of  a 
very  few  new  rules.  The  Committee  in  its  report,  which  was  unanimous, 
said: 

The  objective  point  with  the  committee  was  to  secure  accuracy  in  business, 
economy  of  time,  order,  uniformity,  and  impartiality,  and  to  prepare,  if  possible, 
a  simple,  concise,  and  nonpartisan  code  of  rules,  which  would  neither  surrender 
the  right  of  a  majority  to  control  and  dispose  of  the  business  for  which  it  is  held 
responsible,  nor,  on  the  other  hand,  invade  and  restrict  the  powers  of  a  minority 
to  check  temporarily,  if  not  permanently,  the  action  of  a  majority  believed  to  be 
improper  or  unconstitutional,  and  to  attain,  if  possible,  the  great  underlying 

Sinciple  of  all  the  rules  and  forms  by  which  the  business  of  a  legislative  assem- 
y  is  governed,  whether  constitutional,  legal,  or  parliamentary  in  their  origin, 
viz.,  "to  subserve  the  will  of  the  assembly  rather  than  to  restrain  it,  to  facilitate 
and  not  to  obstruct  the  expression  of  its  deliberate  sense." 

The  rules  then  adopted  remained  in  force  until  the  Fifty-first  Con- 
gress (1890),  when  they  were  revised  by  the  Committee  on  Rules, 
consisting  of  Speaker  Thomas  B.  Reed,  Messrs.  McKinley,  Cannon,  Car- 
lisle, and  Randall.  By  this  revision,  out  of  the  total  number  of  forty- 
seven  rules,  twenty-nine  were  allowed  to  remain  unchanged,  and  in  the 
remaining  eighteen  such  changes  as  were  made  were  only  formal,  except 
in  four  fundamental  particulars.  These  related  to  (i)  dilatory  motions, 
(2)  the  counting  of  a  quorum,  (3)  the  number  which  should  constitute 
a  quorum  in  Committee  of  the  Whole,  and  (4)  the  order  of  business. 
This  last  revision  was  found  necessary  in  order  to  carry  out  the  an- 
nounced objects  sought  to  be  attained  by  the  revision  of  1880,  viz., 
"Economy  of  time,  order,  and  the  right  of  a  majority  to  control  and 
dispose  of  the  business  for  which  it  is  held  responsible." 


238  AMERICAN  FEDERAL   GOVERNMENT 

Prior  to  this  last  revision,  under  then  existing  rules,  the  practice 
known  as  filibustering  had  grown  to  such  an  extent  as  to  waste  much 
valuable  time  and  to  threaten  the  power  of  the  majority  to  deal  with 
the  business  of  the  country.  By  the  use  of  the  privileged  motions  "to 
adjourn  to  a  day  certain,"  and  "to  take  a  recess,"  and  the  practice  on 
the  part  of  Members  of  remaining  silent  and  refusing  to  vote,  thus 
breaking  a  quorum,  it  was  in  the  power  of  the  minority  at  any  time 
effectually  to  obstruct  the  passage  of  any  legislation.  A  motion  to  ad- 
journ to  a  day  certain  was  subject  to  two  amendments,  on  each  of  which, 
as  well  as  on  the  original  motion,  the  yeas  and  nays  could  be  ordered. 
The  same  was  true  as  to  the  motion  to  take  a  recess;  these  motions 
could  be  repeated  without  limit,  and  thus  days  could  be  consumed  in 
useless  calls  of  the  roll.  In  point  of  fact,  in  the  Fiftieth  Congress  on 
one  occasion  the  House  remained  in  continuous  session  eight  days  and 
nights,  during  which  time  there  were  over  one  hundred  roll  calls  on  the 
iterated  and  reiterated  motions  to  adjourn  and  to  take  a  recess  and  their 
amendments.  On  this  occasion  the  reading  clerks  became  so  exhausted 
that  they  could  no  longer  act,  and  certain  Members,  possessed  of  large 
voices  and  strenuous  lungs,  took  their  places.  If  this  was  not  child's 
play  it  would  be  difficult  to  define  it.  Then,  again,  when  a  measure  to 
which  the  minority  objected  was  likely  to  pass,  the  yeas  and  nays  would 
be  ordered. 

The  objecting  minority  Members,  sitting  in  their  seats,  would  fail  to 
respond  when  their  names  were  called,  and  when  the  count  was  made 
it  would  appear  that  there  was  no  quorum  present  to  do  business,  and 
thus  the  measure  would  fail.  It  seems  now  strange  to  realize  that  many 
eminent  men  acting  as  Speakers  of  the  House  maintained  that  for  this 
manifest  evil  no  remedy  existed.  It  remained  for  the  Speaker  of  the 
Fifty-first  Congress, 'Thomas  B.  Reed,  the  greatest  parliamentary  leader 
in  the  history  of  English-speaking  people,  to  make  an  end  of  this  mani- 
fest absurdity.  He  declared  that  physical  presence  and  constructive 
absence  was  impossible;  that  the  quorum  called  for  by  the  Constitu- 
tion was  a  present  and  not  a  voting  quorum ;  and  so,  on  a  certain  his- 
toric occasion,  he  added  to  the  names  of  those  voting  the  names  of  those 
present  and  not  voting  and  announced  the  result  accordingly.  He  has 
no  greater  glory  than  that  the  principle  .he  announced  and  put  into 
practice  has  not  only  been  indorsed  by  the  Supreme  Court  of  the  United 
States,  but  also  by  his  partisan  foes  when  they  came  into  power  in  the 
House,  and  by  the  practical  results  which  recent  years  of  wise  legisla- 
tion unobstructed  by  foolish  tactics  have  put  on  the  statute  book.  Under 
present  rules  the  motion  to  adjourn  to  a  day  certain  and  the  motion  to  take 
a  recess  are  not  privileged,  and,  furthermore,  the  Speaker  is  not  allowed 
to  entertain  any  dilatory  motion.  If  a  quorum  has  been  ascertained  by 
actual  count  to  be  present,  a  measure  voted  on  passes  or  fails  in  accord- 
ance with  the  recorded  vote,  whether  all  Members  have  voted  or  not. 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      239 

In  the  Committee  of  the  Whole  100  now  constitutes  a  quorum  instead 
of  a  majority  of  the  whole  House.  This  is  in  the  interest  of  the  expedi- 
tion of  business. 

Bills  are  now  introduced  by  filing  and  not  by  presentation  in  the  open 
House,  and  thus  much  time  is  saved.  Business  once  entered  upon  is 
continued  until  concluded  instead  of,  as  under  prior  rules,  being  limited 
to  a  certain  time  for  its  consideration  and  then  not  having  been  concluded 
being  sent  to  the  graveyard  of  the  calendar  of  unfinished  business. 

In  the  last  Congress  (Fifty-ninth)  there  were  386  Members  (in  this 
Congress  there  are  391),  and  there  were  introduced  a  total  of  bills  and 
resolutions  numbering  27,114.  It  goes  without  saying  that  not  all  of 
these  bills  could  be  considered,  nor  could  all  of  these  Members  have  a 
hearing.  Theoretically,  every  Member  of  the  House  is  the  equal  of 
every  other  Member;  every  constituency  is  entitled  to  equal  recognition 
with  every  other  constituency,  but  practically  there  can  not  be  391 
Speakers;  there  can  not  be  391  chairmen  of  committees,  nor  equal 
recognition  for  debate  given  to  391  Members.  The  real  purpose,  then, 
to  be  accomplished  by  the  rules  is  the  selection  from  the  mass  of  bills 
introduced  those  proper  to  be  considered.  There  is  no  limitation  on  the 
right  of  a  Member  to  introduce  bills ;  as  many  as  he  likes  and  of  what- 
ever character  he  pleases.  Every  bill  introduced  goes  to  an  appropriate 
committee  for  consideration,  and  whether  or  not  it  gets  upon  a  House 
Calendar  for  action  depends  upon  its  being  reported  by  the  committee. 
It  may  never  be  reported,  and,  of  course,  if  not  reported  can  never  be 
considered  in  the  House.  In  the  last  Congress,  of  the  27,114  bills  and 
resolutions  introduced,  there  were  7,823  reported;  the  others  remained 
in  the  pigeonholes  of  the  various  committees.  Of  the  bills  reported, 
7,423  were  considered,  and  passed.  Bills  when  reported  go  upon  cer- 
tain calendars  of  the  House,  according  to  the  character  of  the  bills. 

1.  Revenue  and  appropriation  bills.    These  are  few  in  number,  not 
to  exceed,  perhaps,  20.    They  come  from  the  Committee  on  Ways  and 
Means,  whose  office  it  is  to  provide  revenue  for  the  Government,  and 
from  the  Committee  on  Appropriations,  and  from  the  several  com- 
mittees having  to  do  with  the  maintenance  of  the  Government  in  its 
various  arms,  such  as  the  Naval  Committee,  the  Military  Committee, 
and  others.    These  bills  when  reported  go  to  a  calendar  known  as  the 
Union  Calendar,  but  they  are  highly  privileged,  as  they  ought  to  be,  for 
without  their  passage  the  Government  wheels  would  stop.    They  can 
be  called  for  consideration  at  any  time.    They  take  precedence  of  all 
other  bills,  and  the  Speaker  has  no  alternative  but  to  recognize  the 
Member  calling  them  up.    These  bills  are  considered  not  in  the  House, 
but  in  Committee  of  the  Whole;   the  Speaker  leaves  the  chair  and  an- 
other Member  takes  his  place. 

2.  Another  class  of  bills  are  such  as  relate  to  some  public  purpose, 
but  carry  no  appropriation,  such,  for  instance,  as  bridge  bills  and  the 


240  AMERICAN   FEDERAL   GOVERNMENT 

like.  To  a  large  extent  bills  from  the  important  committees  on  the 
Judiciary  and  on  Interstate  and  Foreign  Commerce  are  of  this  class. 
These  bills  go  on  the  House  Calendar  and  are  entitled  to  consideration 
in  the  morning  hour.  There  being  no  privileged  bills  for  consideration, 
the  morning  hour  is  the  regular  order.  The  Speaker  must  call  the  com- 
mittees in  their  alphabetical  order,  and  then  the  chairman  of  the  com- 
mittee which  has  the  call  is  entitled  to  recognition  by  the  Speaker,  as 
of  right.  The  House  then  proceeds  to  the  consideration  of  such  bill 
reported  by  the  committee  in  question  and  then  on  the  House  Calendar 
as  the  chairman  calls  up,  and  continues  its  consideration  until  a  vote  is 
had,  subject  only  to  a  possible  interruption  at  the  end  of  sixty  minutes, 
to  which  I  will  refer  hereafter.  But  even  if  interrupted,  its  considera- 
tion thereafter,  when  business  of  that  character  is  in  order,  until  it  is 
finally  disposed  of. 

3.  In  addition  to  public  bills  such  as  I  have  enumerated,  some  carry- 
ing an  appropriation  and  others  not,  there  is  another  class  of  bills,  the 
most  numerous  of  all  —  private  bills  providing  for  the  relief  of  private 
individuals  or  corporations.    These  have  a  Calendar  of  their  own  called 
the  Private  Calendar  and  are  in  order  on  every  Friday  of  each  week. 
They  are,  generally  speaking,  bills  from  the  Committee  on  Claims,  from 
the  Committee  on  Wat  Claims,  and  from  the  Committee  on  Pensions. 
As  to  these  bills  the  Speaker  has  no  independent  right  of  recognition. 
When  addressed  by  the  chairman  of  the  appropriate  committee  on  a 
Friday  he  must  recognize  him,  and  unless  the  House  declines  to  con- 
sider these  bills  the  Speaker  must  leave  the  chair  and  nominate  a  Member 
to  preside  in  his  place.    In  the  last  Congress  there  were  reported  6,834 
private  bills;  6,624  were  passed,  leaving  210  undisposed  of. 

There  is  another  class  of  bills  that,  like  private  bills,  have  a  day  of 
their  own  under  the  rules,  viz.,  District  of  Columbia  bills.  As  is  well 
known,  there  is  no  right  of  suffrage  in  the  District  of  Columbia,  and 
the  Senate  and  House  act  as  its  select  and  common  councils.  District 
of  Columbia  bills  are  in  order  on  two  Mondays  of  every  month.  As  to 
these  bills,  again  the  Speaker  has  no  alternative  but  to  recognize  the 
chairman  of  the  District  Committee  when,  on  his  allotted  day,  he  calls 
up  his  business. 

4.  A  fourth  class  of  bills  provide  for  various  matters  of  public  con- 
cern and  are  such  as  involve  a  charge  upon  the  Treasury.    These  go  to 
the  Union  Calendar,  and  when  considered  must  be  considered  in  Com- 
mittee of  the  Whole.    At  the  end  of  the  morning  hour  (sixty  minutes)  a 
motion  may  be  made  to  go  into  the  Committee  of  Whole  for  the  con- 
sideration of  bills  on  the  Union  Calendar  or  for  the  consideration  of 
some  particular  bill  thereon.     This  motion  the  Speaker  is  bound  to 
entertain. 

Then,  a  large  part  of  the  business  of  the  House  is  done  wholly  out- 
side of  the  rules,  by  unanimous  consent.  Some  gentleman,  for  instance, 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      241 

arises  in  the  House  and,  being  recognized  by  the  Speaker,  asks  "unani- 
mous consent  for  the  present  consideration  of  the  following  bill." 
Unless  objection  is  made  the  bill  is  considered  and  voted  on.  It  is  in 
connection  with  this  practice  and  because  of  it  that  autocratic  power  is 
without  any  reason  ascribed  to  the  Speaker.  But  the  rules  have  nothing 
at  all  to  do  with  this.  The  applicant  for  recognition  asks  that  all  rules 
be  set  aside.  To  this  any  Member  of  the  House  may  object.  Why 
should  complaint  be  made  if  the  Speaker  exercises  his  right  of  objection 
by  refusing  to  recognize  an  applicant  for  recognition  in  any  particular 
case  ?  Because  he  is  Speaker  he  is  no  less  a  Member  of  the  House ;  no 
less  a  Representative  of  his  Congressional  district.  If  he  were  on  the 
floor  he  could  interpose  an  objection  to  any  request  for  unanimous  con- 
sent. Should  he  be  less  able  to  interpose  that  objection  because  he  is 
in  the  chair?  Certainly  not.  That  the  Speaker's  power  in  this  regard 
is  only,  in  the  last  analysis,  that  of  a  Member  may  easily  be  illustrated. 
During  the  latter  part  of  the  Fifty-fourth  Congress,  when  Mr.  Reed  was 
Speaker,  there  was  a  Member  from  Nebraska  named  Kem  who  an- 
nounced that  he  would  object  to  any  consideration  of  bills  by  unanimous 
consent.  After  the  announcement,  on  the  first  day,  the  Speaker's  room 
was  crowded,  as  usual,  with  applicants  for  recognition.  Mr.  Reed 
promised  to  do  the  best  he  could,  but  recalled  to  his  applicants  Kern's 
threat  to  object.  Still  members  persisted,  one  of  them  was  recognized, 
and  Kem  objected.  The  next  day  the  throng  at  the  Speaker's  room 
was  not  so  great,  but  still  of  large  proportions.  Members  had  faith  that 
Kem  would  not  persist.  Again  Mr.  Reed  promised  to  do  his  best; 
again  a  recognition  was  had,  and  again  Kem  objected.  On  the  third 
day  the  Speaker's  room  was  deserted,  while  an  anxious  throng  sur- 
rounded the  desk  of  Mr.  Kem,  and  from  that  time  on,  Kem  being  per- 
sistent, the  Speaker  had  peace;  Mr.  Kem  was  the  autocrat,  and  the 
business  of  the  House  proceeded  under  the  regular  order. 

There  is  no  doubt  that  a  great  many  measures  of  questionable  char- 
acter are  passed  by  unanimous  consent.  Members  can  not  keep  the 
run  of  all  bills  reported  and  are  loath  to.object,  both  because  ignorant 
of  the  merits  of  the  particular  measure  proposed  and  because  they  may 
have  measures  of  their  own  to  be  considered  and  they  fear  a  reciprocity 
of  objection.  In  a  majority  of  cases  the  only  real  intelligent  objection 
made  to  measures  proposed  for  unanimous  consent  is  that  made  by  the 
Speaker,  who  has  had  opportunity  to  examine,  as  was  his  duty,  the  bill. 
On  two  Mondays  in  every  month  and  during  the  last  six  days  of  a  session 
a  motion  is  in  order  to  suspend  the  rules  and  pass  bills,  which  requires 
for  its  adoption  a  two-thirds  vote  of  a  quorum.  The  object  of  this  rule, 
of  course,  is  to  expedite  business  by  getting  rid  of  bills  to  which  two- 
thirds  of  the  House  are  agreed.  But  the  demands  for  recognition  to 
move  to  suspend  the  rules  are  so  far  in  excess  of  any  possible  power  of 
grant  upon  the  Speaker's  part  that  he  is  confronted  by  the  embarrassing 

16 


242  AMERICAN  FEDERAL   GOVERNMENT 

necessity  of  making  a  choice.  There  is  no  doubt  that  he  performs  his 
unpleasant  duty  with  due  regard  to  his  obligation  to  the  public 
service. 

It  is  manifest  that  even  under  the  methods  provided  by  the  rules  for 
the  consideration  of  all  classes  of  business  there  must  necessarily  be 
measures  of  great  public  importance  that,  by  reason  of  their  late  report 
from  a  committee  or  for  some  reason  or  another,  can  not  be  reached 
in  the  regular  order  of  business.  These  are  provided  for  by  special 
orders  reported  by  the  Committee  on  Rules,  which  consists  of  the 
Speaker,  two  Members  from  the  majority,  and  two  from  the  minority. 
Like  the  rules  themselves,  the  Committee  on  Rules  is  made  the  subject 
of  much  unjust  criticism.  Autocratic  power  is  ascribed  to  it.  But  it 
must  be  recognized  first  that  the  existence  of  such  a  body  is  a  necessity, 
and  second  that  the  only  power  it  exercises  is  the  power  of  the  House. 
The  Committee  on  Rules  does  not  dictate,  it  simply  suggests.  Its  report 
is  of  no  consequence  until  it  has  been  adopted  by  a  majority.  The  fact 
that  the  committee's  reports  are  uniformly  adopted,  so  far  from  being 
any  evidence  of  undue  authority  or  power  on  the  part  of  the  committee, 
is  evidence  of  the  discretion  of  the  committee  in  recognizing  and  making 
possible  what  the  House  wants  to  do.  The  real  temper  of  the  House 
upon  any  question  at  any  given  time,  it  may  be  assumed,  is  better  known 
by  the  Committee  on  Rules  than  by  any  one  else.  The  committee,  so 
far  from  being  the  master,  is  the  servant  of  the  House.  Of  the  7,423 
bills  considered  last  year,  only  twenty-four  were  brought  forward  by 
the  Committee  on  Rules. 

All  of  these  were  of  large  national  importance,  and  consideration  of 
them  was  in  accordance  with  the  well-known  desire  of  a  majority  of 
the  House,  as  for  instance,  among  others  the  following :  The  statehood 
bill,  the  immigration  bill,  Philippine  tariff  bill,  pure  food  bill,  railroad 
rate  bill,  bills  relating  to  Isthmian  Canal,  etc. 

While  it  is  true  that  the  authority  of  the  Speaker  as  to  recognition  is 
very  much  limited,  it  would  be  useless  to  deny  that  he  exercises  a  great 
power  upon  the  business  of  the  House.  But  this  is  not  due  to  the  rules 
in  the  first  instance,  but  to  the  personality  of  the  Speaker  himself.  Much 
of  his  power  lies  back  of  his  office.  It  is  because  of  his  character,  his 
experience,  his  service,  his  position  as  a  party  leader  that  he  is  Speaker. 
He  comes  to  his  high  office  because  he  is  primus  inter  pares.  A  leader 
on  the  floor,  he  does  not  cease  to  be  a  leader  when  he  becomes  Speaker. 
One  who  was  himself  a  distinguished  Speaker  of  the  House  of  Repre- 
sentatives, James  G.  Blaine,  in  that  most  eloquent  eulogy  pronounced 
upon  his  chief,  President  Garfield,  said: 

There  is  no  test  of  a  man's  ability  in  any  department  of  public  life  more  severe 
than  service  in  the  House  of  Representatives;  there  is  no  place  where  so  little 
deference  is  paid  to  reputation  previously  acquired  or  to  eminence  won  outside  ; 
no  place  where  so  little  consideration  is  shown  for  the  feelings  or  failures  of 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      243 

beginners.  What  a  man  gains  in  the  House  he  gains  by  sheer  force  of  his  own 
character,  and,  if  he  loses  and  falls  back,  he  must  expect  no  mercy,  and  will  re- 
ceive no  sympathy.  It  is  a  field  in  which  the  survival  of  the  strongest  is  the 
recognized  rule,  and  where  no  pretense  can  survive  and  no  glamour  can  mislead. 
The  real  man  is  discovered,  his  worth  is  impartially  weighed,  his  rank  is 
irrevocably  decided. 

Undoubtedly  the  rules  contribute  to  the  Speaker's  power  in  so  far  as 
they  place  in  his  hands  the  appointment  of  committees.  He  can,  by  a 
judicious  selection  of  committee  membership,  to  a  limited  extent,  shape 
legislation  in  advance  to  accord  with  his  views.  But,  after  all,  his  power 
in  this  respect  is  limited  by  a  number  of  considerations.  In  the  appoint- 
ments to  committees  he  must  recognize  the  claims  of  localities,  the 
qualifications  and  length  of  service  of  his  appointees,  and  various  other 
things.  Above  all  things,  he  is  interested  in  the  success  of  his  adminis- 
tration, in  the  standing  of  his  party,  and  in  his  own  reputation  for  fair- 
ness. What  he  does  he  does  in  the  open,  where  all  men  can  see.  And, 
besides,  how  else  could  committees  be  selected  in  a  House  of  so  large  a 
membership  as  the  present  House  of  Representatives  ?  Caucus  selection 
would  mean  selection  by  combinations  representing  localities  or  special 
interests ;  would  turn  over  the  power  of  the  House  to  the  States  having 
large  delegations.  Caucus  selection  has  been  tried  in  the  past,  and 
abandoned  as  impracticable.  Committees  can  best  be  selected  by  an 
authority  that  can  with  certainty  be  located  and  made  to  bear  the  burden 
of  responsibility. 

I  know  of  nothing  more  interesting  in  the  history  of  Congress  than 
those  passages  which  relate  to  the  expedients  to  which  the  majority  has 
been  compelled  to  resort  to  obtain  control  as  against  obstructive  tactics 
upon  the  part  of  the  minority. 

Early  in  our  history  unlimited  debate  was  resorted  to  to  prevent 
legislative  action,  and  the  result  was  the  adoption  of  the  previous  ques- 
tion in  the  House.  According  to  Mr.  Calhoun  it  was  adopted  — 

in  consequence  of  the  abuse  of  the  right  of  debate  by  Mr.  Gardenier,  of  New 
York,  remarkable  for  his  capacity  for  making  long  speeches.  He  could  keep 
the  floor  for  days. 

But  Mr.  Gardenier  was  only  a  type,  and  the  adoption  of  the  previous 
question  marks  the  first  step  in  our  Congressional  history  taken  by  the 
majority  toward  securing  its  right  to  rule.  The  next  step  was  the 
adoption  of  the  hour  rule,  pursuant  to  which  a  Member  of  the  House 
is  confined  to  the  use  of  one  hour  in  debate. 

It  must  be  confessed  that  in  a  House  constituted  of  so  large  a  member- 
ship as  the  House  of  Representatives  unlimited  debate  would  be  im- 
possible, having  any  due  regard  to  the  dispatch  of  the  public  business. 
There  is  little  if  any  complaint  about  the  hour  rule.  Anyone  familiar 
with  the  record  of  the  last  few  Congresses  will  concede  that  notwith- 


244  AMERICAN   FEDERAL   GOVERNMENT 

standing  the  existence  of  the  hour  rule  there  has  been  practically  no 
limitation  on  the  opportunities  for  debate.  All  parties  desiring  to  be 
heard  have  been  furnished  an  opportunity,  and  when  greater  latitude 
as  to  time  has  been  asked  it  has  readily  been  granted  by  unanimous 
consent.  The  House  will  always  listen  to  the  Member  who  really  has 
something  to  say. 

With  each  decennial  apportionment  the  House  of  Representatives 
increases  in  numbers.  As  the  numbers  increase  in  the  very  nature  of 
things  the  importance  of  the  individual  Member  decreases  and  the 
influence  of  a  few  increases.  What  the  remedy  for  this  is  I  do  not  under- 
take to  predict,  or  what  new  or  modified  rules  may  in  the  future  become 
necessary.  But  under  present  conditions  the  rules  of  the  House  of 
Representatives  are  as  efficient  as  present  wisdom  and  past  experience 
have  been  able  to  devise  "to  subserve  the  will  of  the  assembly  rather 
than  to  restrain  it,  to  facilitate  and  not  to  obstruct  the  expression  of  its 
deliberate  sense." 


CRITICISM   OF   THE   RULES,   APRIL   5,    1906 

[The  sentiment  of  individual  members  upon  the  rules  is  brought  out  in  the 
following  extracts.  There  will  be  abundant  illustrations  also  from  other  dis- 
cussions, which  will  be  given  later  on,  especially  in  the  matter  of  special  rules 
and  finance  legislation.] 

MR.  MOON.  I  have  no  objection  to  drastic  rules  in  a  body  of  this  size. 
It  is  unwieldy,  and  we  need  the  power  of  the  rule  even  to  force  legisla- 
tion, but  we  do  need  rules  that  will  operate  justly  and  equally  upon 
every  Member  and  every  party  in  this  House.  It  is  unwise  for  us,  in  view 
of  the  needs  of  this  Government,  to  tie  the  Representatives  of  the  people 
upon  this  floor.  The  present  rules  of  the  House  of  Representatives,  in 
my  judgment,  are  dangerous  to  the  welfare  of  the  people ;  and  yet,  take 
them  altogether,  leaving  a  few  rules  out  of  consideration,  it  is  perhaps  as 
good  a  code  as  we  could  obtain  for  a  body  of  this  size. 

The  power,  though,  which  the  Speaker  has,  or  exercises  if  he  chooses, 
under  the  construction  of  the  rule,  to  turn  from  a  Member  and  decline  to 
recognize  him  for  the  purpose  for  which  he  rises,  after  once  recognizing, 
is  a  most  dangerous  power  in  any  parliamentary  body.  That  power  which 
you  have  given  him,  and  which  he  exercises  as  your  servant,  is  a  power 
that  ought  never  to  be  invoked  against  the  interests  of  the  people  in  the 
consideration  of  legislation.  It  denies  equal  opportunities  to  the  member- 
ship of  the  House.  It  degrades  the  Representative. 

Another  rule  to  which  I  have  referred  is  this :  You  prevent  upon  the 
consideration  of  an  appropriation  bill  new  legislation.  Don't  you  think 
it  would  be  wise  to  modify  that  rule  to  the  extent  that  legislation  which  is 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      245 

germane  to  a  particular  subject  of  consideration  may  be  presented? 
That  is  a  wise  rule  to  prevent  riders  being  placed  on  an  appropriation 
bill,  riders  foreign  to  the  subject  of  consideration ;  but  right  here,  right 
under  this  bill,  at  this  hour  if  that  rule  were  modified  this  House  could 
consider  the  question  of  railway  mail-pay ;  it  could  consider  the  question 
of  changing  the  rate  of  second-class  matter;  it  could  consider  the  ques- 
tion of  a  usurpation  of  power  under  the  statute  in  the  Post-Office  De- 
partment. But  you  are  powerless  under  the  rule  which  shackles  you  by 
your  own  will  to  do  so.  What  further  remedy  have  you  ?  Can  you  appeal 
to  the  committee  for  consideration  of  these  questions  by  separate  bills  ? 
You  have  found  those  things  vain  and  futile.  If  you  clothe  the  Speaker 
with  the  power  to  name  the  committee  instead  of  letting  the  House  of 
Representatives  select  its  own  committeemen  as  the  Senate  does,  you 
place  it  within  his  power  to  so  organize  the  committees  of  this  House  as  to 
forever  defeat  legislation  coming  before  the  committee,  and  then  you  put 
it  beyond  your  power  in  this  House  by  the  rule  to  which  I  have  referred 
of  resuming  the  sovereign  power  to  which  you  are  entitled  yourself.  You 
have  yielded  away  your  power,  you  can  not  help  yourselves.  The  result 
of  this,  Mr.  Chairman,  is  that  when  gentlemen  on  the  floor  of  this  House 
find  that  it  is  impossible  to  be  heard  in  the  interest  of  their  constituents, 
they  yield.  When  a  question  arises  in  this  body  upon  which  they  ought  to 
have  independent  judgment 

Mr.  SIMS.  Mr.  Chairman,  I  thoroughly  agree  with  what  the  gentle- 
man has  been  saying  about  this  rule  of  not  being  permitted  to  legislate  on 
an  appropriation  bill ;  but  it  is  not  a  fact  that  it  does  not  prevent  that 
new  legislation,  provided  that  in  the  Senate  they  put  on  the  same  amend- 
ment that  we  rejected  here  in  the  House.  It  comes  back  then,  and  under 
the  rules,  and  it  is  not  out  of  order  to  consider  that  which  has  been  once 
solemnly  ruled  out  of  order. 

Mr.  MOON  of  Tennessee.  Of  course,  we  agree  on  that  question.  It 
can  legislate,  while  this  House  can  not,  under  the  rule. 

Mr.  SIMS.    But  the  Senate  forces  us  to  do  it. 

Mr.  MOON  of  Tennessee.  The  Senate,  of  course,  forces  us  to  do  it. 
The  Senate  forces  us  to  do  nearly  all  we  do.  The  Republican  majority 
is  not  to  blame  alone  for  this. 

Mr.  SIMS.    Mr.  Chairman,  I  think  the  gentleman  is  right  about  that. 

Mr.  MOON  of  Tennessee.  The  Republican  majority  in  this  House  has 
surrendered  beyond  all  question  freely  and  voluntarily  all  of  the  reserved 
rights  of  a  Representative,  save  one  or  two,  to  the  Speaker  of  the  House. 
Now,  if  anybody  has  to  exercise  that  power  on  the  Republican  side,  I 
would  as  soon  have  the  present  Speaker  do  it  as  anybody  in  the  world. 
It  is  not  a  question  of  the  Speaker  individually.  I  believe  everybody  in 
this  House  is  personally  fond  of  him.  It  is  a  question  of  the  abrogation 
of  the  power  of  the  Representatives  so  as  to  prevent  legislation  that  is 
wholesome  and  just. 


246  AMERICAN   FEDERAL   GOVERNMENT 

I  have  now  demonstrated  to  the  House,  I  trust,  legislation  that  is  needed 
upon  this  bill.  I  defy  anyone  to  get  one  particle  of  it.  You  can  not  put 
it  on  here.  You  are  tied  by  your  rules ;  you  can  not  put  it  through  your 
committee,  for  the  Speaker  has  tied  your  committee.  What  are  you  to 
do?  Gentlemen,  there  are  reserved  rights,  but  only  one  or  two  to  the 
House  of  Representatives. 

If  without  the  spirit  of  revenge  or  anger,  if  in  obedience  to  the  high  dic- 
tates of  duty,  if  in  recognition  of  those  representative  rights  which  you  all 
possess,  you  will  say  to  the  House  of  Representatives,  "Be  bound  by  the 
chains  you  have  forged ;  no  business  shall  be  done  in  this  House  save  by 
and  in  accordance  technically  with  every  rule  that  this  House  has  adopted 
for  the  transaction  of  business,"  and  you  do  that  for  a  few  weeks,  then 
this  majority  and  the  Speaker  will  find  themselves  utterly  powerless  to 
move  one  inch  in  legislation.  They  will  break  the  chains  themselves, 
and  they  will  tell  the  Speaker  that  he  is  no  longer  a  master,  but  a  servant 
of  the  House  of  Representatives.  How  was  it  in  the  days  that  are  past  ? 
Was  this  a  body  in  which  the  will  and  decree  of  a  political  coterie  was 
registered  ?  This  was  the  great  forum  in  which  the  battles  of  the  people 
were  fought.  Here  every  great  battle  for  American  liberty  and  American 
citizenship  has  been  fought  out  in  behalf  of  the  people,  and  to-day,  like 
craven  cowards,  you  have  surrendered  every  right  you  have  given  to  the 
Speaker  of  the  House  of  Representatives  and  the  Committee  on  Rules, 
and  without  the  slightest  deliberation  you  pass  for  consideration  to  the 
other  end  of  the  Capitol  every  bill  nearly  that  is  before  you. 

Without  naming  any  particular  bill,  but  to  show  the  evil  effect  of  that 
and  of  ill-considered  legislation,  a  bill  is  to-day  pending,  upon  which  this 
House  has  acted,  affecting  a  great  Territory  proposed  to  be  made  a  State, 
greater  than  the  State  of  Missouri,  where  this  House  actually  failed  to  ex- 
tend, so  far  as  some  necessary  provisions  were  concerned,  the  benefit  of 
the  law  proposed  to  be  enacted  to  a  part  of  the  Territory  —  unintention- 
ally, of  course.  No  consideration  in  committee,  no  consideration  any- 
where, until  the  Senate  of  the  United  States  pointed  out,  to  the  shame  of 
the  House  of  Representatives,  the  patent  defect.  You  gentlemen  can  not 
go  back  to  the  country  and  accuse  the  Republican  party  of  all  the  wrongs 
that  the  people  suffer  at  the  hands  cf  this  once  great  but  now  degenerate 
body.  The  Democracy  of  the  House  of  Representatives  must  exercise 
the  reserved  power  of  refusing  and  forbidding  anything  to  be  done,  save 
in  obedience  to  the  law  that  the  House  has  made  for  its  government,  and 
then  the  people  will  see  where  the  chains  are  and  who  forged  them,  and 
they  will  put  an  end,  I  trust,  to  the  wrongs  and  injustices  that  exist  here. 

Mr.  SIMS.  We  witnessed  the  spectacle  a  few  days  ago  of  two  Repre- 
sentatives on  this  floor,  one  a  member  of  the  Republican  party  and  one  a 
member  of  the  Democratic  party,  who  undertook  to  have  one  bill  passed 
according  to  the  general  rules  of  this  House,  and  the  Committee  on  Rules 
got  together  and  decided  that  the  general  rules  were  the  worst  thing  pos- 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      247 

sible  to  apply  to  that  appropriation  bill;  and  they  brought  in  a  special 
rule,  repealing  the  general  rules  and  making  in  order  everything  that  had 
gone  out  on  points  of  order  as  well  as  all  that  remained. 

******** 

Mr.  SIMS.  What  are  you  going  to  do  about  it?  Let  us  get  down  to 
something  practical. 

Mr.  MOON  of  Tennessee.  I  was  just  suggesting  to  you  a  practical 
solution  of  it.  Suppose  when  a  gentleman  gets  on  the  floor  of  the  House 
of  Representatives  and  asks  unanimous  consent  and  the  Speaker  recog- 
nized the  gentleman  for  unanimous  consent;  suppose  you  have  no 
objection  to  the  bill,  but  have  objection  to  the  exercise  of  that  power 
emanating  from  one  source  alone,  a  power  that  practically  controls  the 
operations  of  the  House,  you  have  the  reserved  right  as  a  Representative 
to  say,  "I  object."  That  places  the  gentleman  who  made  the  motion  in 
his  seat.  How  is  he  going  to  get  his  bill  up  ? 

He  can  not  do  it  except  upon  call  of  committees  on  the  day  when  it  is 
reached,  and  the  chances  are  only  one  in  a  hundred  he  can  reach  it  then. 
He  can  not  go  to  the  Union  Calendar  and  take  a  bill  off  that  Calendar. 
There  are  three-fourths  of  the  important  bills  of  the  House  upon  that 
Calendar,  and  that  Calendar,  by  virtue  of  the  power  of  the  Speaker,  has 
not  been  called  for  general  consideration  in  ten  long  years  in  the  House 
of  Representatives.  You  can  consider  on  it  those  things  he  favors  only 
without  unanimous  consent  or  a  special  rule,  and  he  controls  recognition 
and  is  chairman  of  the  Committee  on  Rules. 

Mr.  SIMS.  Then  what  is  to  hinder  the  Committee  on  Rules  from 
selecting  out  these  very  bills  to  which  objection  has  been  made  and  bring- 
ing in  a  special  rule  that  they  shall  be  considered  without  any  reference  to 
unanimous  consent? 

Mr.  MOON  of  Tennessee.  Well,  what  hinders  the  House  of  Repre- 
sentatives from  exercising  its  power  to  overturn  the  Committee  on  Rules  ? 

Mr.  SIMS.  Well,  I  thought  the  gentleman  answered  a  while  ago  that 
we  had  lost  about  all  self-respect  and  courage  and  everything  else. 

Mr.  MOON  of  Tennessee.  Oh,  I  think  not;  I  did  not  mean  to  say 
and  did  not  say  that,  Mr.  Chairman.  I  meant  to  say  that  we  had  lost  the 
power  of  resistance. 

Mr.  RICHARDSON  of  Alabama.    Mr.  Chairman 

The  CHAIRMAN.  Does  the  gentleman  from  Tennessee  yield  to  the 
gentleman  from  Alabama? 

Mr.  MOON  of  Tennessee.    I  yield  to  the  gentleman  from  Alabama. 

Mr.  RICHARDSON  of  Alabama.  I  heard  you  say  something  in  your 
remarks  relative  to  the  degeneracy  of  the  Democracy  on  this  side  of  the 
House.  I  ask  the  gentleman  the  question  —  inasmuch  as  you  called  us 
degenerate  —  if  when  we  were  in  power  and  Mr.  Crisp,  of  Georgia,  was 
Speaker  the  same  rules  were  not  substantially  adopted  then  as  are  adopted 
now? 


248  AMERICAN  FEDERAL   GOVERNMENT 

Mr.  MOON  of  Tennessee.  Yes ;  and  they  were  just  as  infamous  then 
as  they  are  now.  [Applause  on  the  Democratic  side.] 

Mr.  TOWNE.  Mr.  Chairman,  I  desire  to  subscribe  very  cordially  to 
some  of  the  remarks  —  indeed,  practically  to  all  of  them  —  of  the  dis- 
tinguished gentleman  from  Tennessee  who  has  just  resumed  his  seat, 
addressed  to  the  subject  of  the  rules  of  this  House;  but  I  wish  to  enter 
one  important  qualification  in  respect  to  the  criticisms  that  are  passed 
upon  the  Speaker.  The  Speaker  is,  in  my  judgment,  almost  as  much 
sinned  against  as  sinning.  The  fact  that  under  both  Republican  and 
Democratic  regimes  very  largely  the  same  complaint  has  been  made  in 
respect  to  the  exercise  of  quasi-autocratic  power  by  the  Chair  is  itself  a 
recognition  to  a  considerable  degree  that  the  necessity  for  exercising  that 
kind  of  power  inheres  in  the  duties  of  the  office  itself  as  it  has  evolved  in 
our  system. 

Now,  sir,  I  am  not  prepared  at  this  moment  to  enter  upon  a  careful 
discussion  of  certain  matters  that  I  wish  merely  to  indicate  for  the  sober 
consideration,  in  this  connection,  of  the  men  who,  as  I  hope,  are  to  parti- 
cipate in  the  framing  of  the  rules  for  the  Sixtieth  Congress.  [Applause.] 
I  mean  the  Democrats  of  this  body.  [Renewed  applause.] 

The  Speakership  of  this  House,  sir,  in  its  origin  was  not  a  political 
office.  It  is  interesting  to  contrast  it  with  the  history  of  the  speakership 
of  the  English  House  of  Commons,  whence  we  borrow  very  largely  the 
model  upon  which  this  House  is  constructed.  In  the  House  of  Commons 
the  speaker  is  a  mere  moderator,  who  presides  over  a  parliamentary  body 
for  the  purpose  of  enforcing  ordinary  parliamentary  rules.  The  office 
has  no  political  significance.  That  fact  is  illustrated  by  the  recent  re- 
election of  Mr.  Lowther,  the  Conservative  speaker,  by  the  new  enormous 
Liberal  majority  in  the  House  of  Commons. 

If  a  speaker  is  a  competent  parliamentarian,  a  fair  man,  and  a  man  of 
ability,  no  majority  in  the  English  Parliament  cares  to  which  party  he 
belongs.  But  originally  the  English  speaker  was  a  political  officer.  His 
name  signifies  it.  He  spoke  for  the  Commons  with  the  King,  and  to  a  con- 
siderable degree  was  able  to  direct  the  deliberations  of  the  House  and  to 
select  the  subjects  upon  which  it  should  deliberate.  In  process  of  time 
there  developed  the  English  ministry,  the  responsible  element  in  the  con- 
trol of  the  legislative  in  the  British  system.  The  ministry  determines  all 
the  initiative  in  legislation,  marks  out  the  programme  for  the  Commons, 
determines  what  propositions  of  legislation  shall  come  before  that  body ; 
and  the  opposition  —  I  may  interpolate  at  this  point  —  has  always  the 
right  to  propose  and  discuss  amendments.  That  function  is  ever  the 
great  factor  in  that  general  system  of  government  to  which  the  English 
Commons  and  this  body  belong,  a  system  that  the  great  commentator 
Bagehot  has  called  a  government  by  discussion;  and  if  at  any  time  this 
House  shall  ever  have  its  ancient  dignity  and  power  restored  and  shall 
again  appeal  to  the  imagination  and  respect  of  the  people  of  America,  it 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      249 

will  be  when  it  shall  have  vindicated  for  itself  the  right  to  discuss  all  pub- 
lic measures  proposed  here.  [Loud  applause.]  But  in  America  we  have 
never  evolved  anything  that  answers  to  the  British  cabinet  or  ministerial 
system.  There  must,  however,  in  every  majority  temporarily  controlling 
the  deliberations  of  this  House,  be  somewhere  an  initiative,  the  power  of 
determining  the  policy  according  to  which  the  majority  shall  choose  to 
proceed,  and  how  it  shall  exercise  that  power.  It  is  interesting  to  note 
how  this  function  has  become  an  asset  of  our  Speakership,  an  evolution 
in  that  office  having  occurred  directly  opposite  from  that  which  marked 
the  English  speakership.  Speaker  Muhlenberg,  the  first  Speaker  of  the 
House  of  Representatives,  nearly  one  hundred  and  twenty  years  ago,  was 
a  mere  presiding  officer,  but  in  the  course  of  time  the  officer  who  com- 
menced as  a  mere  moderator  has  developed  into  the  most  powerful  politi- 
cal functionary  in  our  Government. 

I  do  not  propose  at  this  moment,  and  without  preparation,  to  under- 
take a  discussion  of  the  philosophy  implied  in  the  fact  I  have  cited.  I 
shall  merely  suggest  whether  in  this  proposed  and  desirable  reform  of  the 
rules  of  the  House  we  are  not  face  to  face  with  more  than  a  mere  question 
of  convenience,  a  deep  question  of  government  indeed,  complicated  with 
the  evolution  of  our  system  itself.  But  there  are  some  things  that  those 
who  propose  to  reform  these  rules  can  entertain  little  difference  about. 
One  of  them  was  suggested  very  ably  by  the  gentleman  from  Tennessee 
in  answer  to  a  question.  We  can  change  the  rules  of  the  House.  We  can 
if  we  will.  We  will  not  if  we  submit  ourselves  to  the  dictation  of  a  few 
men  on  grounds  of  alleged  party  interest  and  refuse  to  stand  in  favor  of 
the  inherent  legislative  rights  of  the  House.  The  majority  party  can,  if 
it  will,  make  a  few  simple  changes  in  the  rules  that  will  go  a  great  way 
to  restore  the  ancient  capacities  and  prestige  of  the  House. 

For  instance,  now,  if  a  man  on  the  floor  of  this  House  desires  to  chal- 
lenge the  attention  of  the  Chair  he  must  arise  in  his  place  and  address  the 
Speaker ;  and,  as  I  think  the  language  of  the  rule  is  —  although  I  have 
not  seen  it  lately  —  "upon  being  recognized,  he  shall  proceed  in  order." 
If  he  is  not  recognized  he  can  not  proceed,  and'we  witness  this  anomalous 
and  insulting  thing  —  although  the  Speaker  is  not  in  a  personal  sense  to 
blame  for  it,  let  me  say,  it  is  inherent  in  the  rules  —  that  a  man  repre- 
senting a  great  American  constituency,  with  something  to  speak  about 
and  to  think  about  and  to  propose  to  this  great  body  on  his  individual  and 
political  responsibility,  arises  in  his  place  here  and  the  Speaker  says  to 
him,  " For  what  purpose  does  the  gentleman  rise?"  And  if  the  purpose 
does  not  suit  the  Speaker  the  Member  has  not,  to  any  effectual  purpose, 
arisen  at  all,  but  has  to  take  his  seat. 

Now,  sir,  when  two  or  more  men  are  contemporaneously  challenging 
the  attention  of  the  Chair,  it  is  a  mere  necessity  that  he  shall  choose  which 
one  to  recognize.  No  rule  can  ever  obviate  that;  but  it  has  happened 
time  and  again  —  it  happened  in  my  own  case  in  the  Fifty-fourth  Con- 


250  AMERICAN   FEDERAL   GOVERNMENT 

gre'ss  —  that  but  one  Member  is  asking  recognition  from  the  Chair,  and 
that  he  can  not  get  the  floor.  Now,  I  undertake  to  say  that  any  Repre- 
sentative of  a  great  constituency  of  the  American  people  upon  this  floor 
has  a  right,  or  ought  to  have  the  right,  to  ask  the  attention  of  the  Chair 
and  the  House  to  anything  he  wishes  to  bring  to  the  attention  of  this  as- 
sembly when  nobody  else  is  claiming  the  floor  at  the  same  time.  [Ap- 
plause.] 


REPRESENTATIVE   CUSHMAN   ON   THE   RULES1 

MR.  CUSHMAN.  I  for  one  expect  to  live  to  see  the  day  in  this  House, 
not  when  the  Speaker  shall  tell  the  individual  members  of  this  House 
what  he  is  going  to  permit  them  to  bring  up,  but  when  those  individual 
members  constituting  a  majority  will  inform  the  Speaker  what  they 
are  going  to  bring  up  for  themselves. 


THE  CALENDAR  OF  THE  HOUSE 

I  for  one  expect  to  live  to  see  the  day  in  this  Hall>  when  this  House 
has  leisure  in  the  interim  between  the  passage  of  the  great  appropriation 
bills  that  this  House  will  go  into  the  Committee  of  the  Whole  House 
on  the  state  of  the  Union  for  the  consideration  of  bills  on  the  Union 
Calendar.  I  expect  to  live  to  see  the  day  when  the  Union  Calendar  will 
be  called  oftener  than  once  in  a  lifetime. 

Does  anybody  say  that  it  is  lack  of  time  that  prevents  this?  I  have 
seen  this  body  adjourn  three  and  four  days  at  a  time  when  the  Union 
Calendar  was  freighted  with  the  hopes  of  voiceless  millions.  No,  sir; 
it  does  not  lie  in  the  mouth  of  this  body  or  any  member  of  it  to  say  that 
it  is  lack  of  time.  It  is  lack  of  inclination  and  not  lack  of  time  that  ails 
this  body  —  or  at  least  those  who  dominate  it. 

It  does  not  require  any  longer  time  to  pass  the  same  bill  when  we  are 
in  the  Committee  of  the  Whole  House  on  the  state  of  the  Union  than 
it  does  to  pass  it  under  unanimous  consent.  The  only  difference  is  the 
first  is  entirely  within  the  power  of  the  members  themselves,  while  the 
unanimous  consent  route  is  entirely  controlled  by  the  Speaker.  But, 
sir,  I  have  seen  the  Speaker's  room  black  with  members,  like  flies  around 
a  honeycomb,  each  one  wondering  if  he  was  going  to  be  able  to  per- 
suade the  Speaker  to  recognize  him.  I  will  tell  you,  sir,  all  we  have  to 
do  to  regulate  this  matter  is  not  to  put  in  so  much  time  trying  to  get  the 
Speaker  to  recognize  us,  but  to  rise  up  in  our  dignity  and  our  might 
and  recognize  ourselves.  [Applause.] 

When  we  go  into  the  Committee  of  the  Whole  for  the  consideration 

1  Congr.  Record,  Apr.  17,  1902. 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      251 

of  bills  on  the  Union  Calendar,  every  man  with  a  bill  on  that  Calendar 
has,  or  ought  to  have,  an  equal  chance  to  get  his  bill  considered. 

But  under  the  other  system  —  the  unanimous-consent  route  —  unfair 
and  inequitable,  the  Speaker  of  this  House  stands  up  and  passes  out 
recognitions  for  " unanimous  consents"  like  so  many  sugar-coated 
doughnuts.  He  recognizes  those  he  desires  to  recognize,  and  he  does 
not  recognize  those  whom  he  does  not  wish  to  recognize. 

What  is  the  Union  Calendar  of  this  House  and  what  bills  go  upon  that 
Calendar  ?  Every  bill  containing  an  appropriation  of  money  or  creating 
an  office  goes  upon  that  Calendar.  It  is  difficult  to  conceive  of  any 
important  bill  which  would  not  include  in  its  provisions  one  or  the  other 
of  those  features. 

That  being  true,  the  most  important  bills  that  are  introduced  in  this 
House  go  upon  the  Union  Calendar.  I  would  like  to  stand  up  in  one 
crowd  the  70,000,000  in  this  Republic  and  have  each  one  make  a  guess 
as  to  how  often  there  is  a  call  of  the  Union  Calendar  in  the  House  of 
Representatives.  It  is  never  called.  Only  once  in  the  last  seven  years 
has  this  House  gone  into  the  Committee  of  the  Whole  House  on  the 
state  of  the  Union  for  the  consideration  of  bills  on  the  Union  Calendar. 
Why  do  we  have  a  Calendar  in  this  House?  Did  any  man  ever  hear 
in  his  lifetime  before  of  a  Calendar  that  is  never  called?  Under  the 
present  system  of  running  this  House  we  have  no  more  need  of  a  Calendar 
than  a  man  with  both  arms  cut  off  above  the  elbows  needs  a  pair  of  fur- 
trimmed  mittens.  [Laughter.] 

A  friend  of  mine  some  time  ago  said  to  me,  "  Cushman,  what  makes 
you  so  thin  ?  "  I  will  tell  you  what  makes  me  so  thin.  I  have  behind  me 
an  honest  but  infuriated  constituency.  A  half  a  million  worthy,  honest, 
patriotic  people  who  are  demanding,  and  rightfully  demanding,  that  I 
secure  certain  needed  legislation  for  them.  That  is  the  pressure  on  me 
from  the  rear.  Then  in  this  House  whenever  I  try  to  secure  the  con- 
sideration of  matters  of  legislation  in  which  my  people  are  interested 
I  run  up  against  the  stone  wall  that  surrounds  the  Speaker  of  this  House 
and  the  Committee  on  Rules.  That  is  what  constitutes  the  pressure  in 
front.  And  I  tell  you  frankly  that  between  the  pressure  that  has  been 
brought  to  bear  on  me  from  the  rear  and  the  pressure  I  have  encoun- 
tered in  front  that  I  have  become  thinner  than  a  cancelled  postage 
stamp.  That  is  what  is  the  matter  with  me.  [Laughter.] 


THE  RIGHTS  OF  A  LEGISLATOR 

Under  the  rules  of  this  House  as  they  are  administered,  the  rights  of 
the  individual  legislator  in  this  body  are  simply  limited  to  his  right  to 
vote  "yes"  and  uno"  on  the  various  propositions  that  are  brought  be- 
fore this  House. 


252  AMERICAN   FEDERAL   GOVERNMENT 

I  say  to  you  that  one  of  the  rights  inherent  in  and  appertaining  to  the 
individual  membership  of  every  deliberative  legislative  body  is  not  only 
the  right  to  vote  on  the  questions  that  are  brought  up,  but  the  broader 
and  higher  right  to  have  his  voice  heard  and  his  vote  recorded  in  deter- 
mining what  questions  shall  be  brought  up  for  consideration.  And  any 
man  who  denies  that,  denies  the  existence  of  every  principle  that  lies 
at  the  base  of  a  republican  form  of  Government. 

What  do  we  amount  to  as  individual  units  in  this  House  —  this  House 
that  was  once  the  great  House  of  Representatives,  the  popular  forum  of 
a  patriotic  people?  What  is  it  now?  It  is  an  annex  to  the  committee 
room  of  the  Committee  on  Rules.  Here  is  where  we  meet  and  go  through 
the  stupid  formality  of  ratifying  the  legislation  that  is  determined  upon 
by  the  Speaker  and  his  Committee  on  Rules.  To  me  one  of  the  amaz- 
ing things  that  occur  in  this  House  is  to  have  some  man  arise  and  select 
for  his  subject  "  Government  without  the  consent  of  the  governed,"  for 
the  Speaker  invariably  strains  his  eyes  and  cracks  his  voice  trying  to 
discern  and  draw  pictures  of  an  alleged  condition  of  that  kind  in  a  region 
7,000  miles  away.  Talk  about  government  without  the  consent  of  the 
governed.  If  my  brief  legislative  experience  counts  for  anything,  that 
system  has  reached  its  greatest  perfection  and  found  its  most  perfect 
flower  right  here  in  this  Hall. 


REPRESENTATIVE  COCKRAN  ON  THE  HOUSE 
PROCEDURE1 

MR.  COCKRAN.  Anyone  who  has  followed  the  course  of  this  general 
debate  must  have  become  impressed  with  two  radically  distinct  and  con- 
flicting emotions ;  admiration  for  the  high  capacity  shown  by  the  speakers 
and  regret  that  under  the  rules  which  govern  us  the  speeches  themselves 
were  directed  not  to  some  question  pending  before  the  House,  but  de- 
livered into  the  empty  air.  By  this,  Mr.  Chairman,  I  would  not  be 
understood  as  saying  that  they  were  irrelevant  to  matters  deeply  affect- 
ing the  public  welfare  and  vividly  before  the  public  mind.  With  hardly 
an  exception  they  all  turned  upon  questions  of  vital  and  pressing  political 
importance,  yet  hardly  one  touched  a  subject  with  which  the  House  will 
be  suffered  to  deal.  If  years  from  now  some  student  should  undertake 
to  study  the  Record  which  chronicles  our  proceedings,  he  would  be  driven 
to  the  conclusion  that  while  nearly  every  one  of  those  speeches  taken  by 
itself  was  of  such  excellence  that  it  might  have  been  addressed  to  a 
council  of  sages,  yet  the  whole  debate  taken  together  suggests  the  in- 
coherence, discordance,  and  dissonance  of  a  lunatic  asylum  rather  than 
the  debate  of  a  highly  intelligent,  deliberative  body.  [Laughter.] 

1  Congr.  Record,  reported  Apr.  20,  1906. 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      253 

Mr.  Chairman,  my  object  in  taking  the  floor  now  is  to  bring  before 
the  House  the  rules  which  have  caused  this  profligate  waste  of  such  ex- 
cellent material,  in  the  hope  that  through  discussion  of  them  means 
may  be  found  by  which  these  abundant  talents,  these  great  potentiali- 
ties of  efficient  service,  will  be  utilized  for  the  public  benefit  —  not  dis- 
sipated to  the  public  discredit. 

Mr.  Chairman,  the  recent  history  of  this  House  shows  conclusively 
that  there  is  not  in  all  this  world  a  body  capable  of  higher  legislative 
service  or  animated  by  loftier  civic  virtue.  And  yet,  sir,  it  is  a  melan- 
choly spectacle  that  this  body,  which,  when  controlled  by  the  judgment, 
the  intelligence,  and  the  patriotism  of  its  membership,  has  succeeded 
in  producing  the  most  important  and  triumphant  legislative  results, 
when  hampered,  fettered,  and  restricted  by  absurd  rules,  often  sinks  to 
an  almost  ludicrous  incapacity,  of  which  this  very  debate  is  a  striking 
illustration.  That  I  do  not  exaggerate  is,  in  my  judgment,  conclusively 
proved  by  the  triumphant  success  of  the  House  this  session  in  framing 
and  passing  a  railroad  rate  bill,  when  it  was  free  to  control  its  own 
Members,  and  its  utter  failure  to  pass  an  effective  measure  last  session 
when  it  was  bound  and  gagged  under  restrictions  imposed  by  the 
Committee  on  Rules. 

Last  year  when  this  House  was  called  upon  to  deal  with  the  intricate, 
perplexing,  and  almost  wholly  unexplored  field  of  railroad  rate  legisla- 
tion it  was  placed  under  a  rule  which  restricted  its  power  to  adopting 
the  measure  recommended  by  the  majority  of  the  Committee  on  Inter- 
state Commerce,  or  else  adopting  the  measure  recommended  by  the 
minority.  No  power  was  left  in  a  Member  to  offer  an  amendment,  or 
in  the  House  to  consider  it.  As  amendment  is  the  only  object  and  pur- 
pose of  discussion,  where  a  body  is  practically  unanimous  on  the  prin- 
ciple of  a  bill,  as  the  House  was  on  that  railroad  measure,  the  passage 
of  such  a  rule  simply  meant  that  we  threw  over  upon  the  Senate  the 
important  duty  of  originating  amendments,  whkh  all  conceded  to  be 
necessary.  That  was  not  only  an  abdication  of  our  functions  and  a 
renunciation  of  our  duty,  but  it  was  a  confession  of  incapacity.  For  my 
part,  sir,  I  declined  to  be  a  party  to  such  an  abasement  of  this  House, 
membership  in  which  I  consider  a  distinguished  honor,  and  so  when 
the  measure  was  on  its  passage  I  refused  to  vote,  asking  simply  to  be 
recorded  " present." 

That  measure  met  the  fate  which  the  method  of  its  passage  invited. 
It  fell  stillborn  on  the  threshold  of  the  other  Chamber.  It  was  never 
even  considered  by  the  Senate.  It  was  thrown  in  the  wastebasket,  its 
proper  destination.  There  it  remained,  useless  for  every  purpose,  ex- 
cept as  a  monument  to  the  folly,  the  incapacity  —  aye,  sir,  I  will  say  the 
disloyalty  —  with  which  we  renounced  our  functions,  turned  our  backs 
upon  our  obligations,  fled  from  our  obvious  duty. 

Now,  Mr.  Chairman,  contrast  with  that  dreary  record  of  incapacity, 


254  AMERICAN   FEDERAL   GOVERNMENT 

of  folly,  and  of  failure,  the  triumphant  progress  of  the  bill  dealing  with 
the  same  subject  which  passed  the  House  this  year.  When  it  came  before 
us,  the  House  was  left  free  to  deal  with  the  measure  as  it  pleased.  Full 
power  to  offer  amendments  was  left  in  the  hands  of  every  Member. 
The  limit  of  debate  was  fixed  by  a  unanimous  vote.  Every  amendment 
offered  was  considered  and  action  taken  freely  upon  it.  The  result  was 
a  measure  which  I  venture  to  say  will  stand  for  a  long  time  as  a  monu- 
ment to  the  patriotism  in  which  it  was  conceived,  the  wisdom  in  which 
it  was  framed,  and  the  resolution  with  which  it  was  passed.  [Loud 
applause.] 

I  say  this,  sir,  notwithstanding  the  fact  (and  largely  because  of  the 
fact)  that  since  this  measure  passed  this  House  it  has  been  the  subject  of 
vigorous  animadversions  and  very  bitter  criticism.'  I  take  it  that  these 
criticisms  are  in  the  highest  degree  a  compliment  to  its  merits.  The 
wrongdoers  with  whom  it  was  intended  to  deal  testify  by  the  vehemence 
and  fury  with  which  they  assail  it  how  deeply  they  realize  its  efficiency. 
But,  sir,  the  abuse  of  miscreants  whose  crimes  it  is  intended  to  prevent 
weighs  little  in  the  minds  of  honest  men  against  the  approval  of  the 
people  whose  rights  it  is  drawn  to  protect.  And  this  it  enjoys  beyond 
all  question.  Conceive  for  a  moment  the  change  in  public  attitude 
toward  this  measure  since  closing  debate.  Recall  the  objections  that 
were  advanced  to  it  in  this  House  with  so  much  vehemence  this  year 
and  last  year,  and  then  you  have  but  to  examine  from  day  to  day  the 
adverse  comments  in  newspapers,  the  speeches  delivered  against  it,  the 
interviews  with  railway  officials  and  railway  attorneys  who  condemn 
it,  to  measure  the  distance  between  the  grounds  occupied  by  its  oppo- 
nents before  discussion  in  the  House  began  and  since  its  close.  Then 
you  will  be  able  to  realize  the  distance  that  public  opinion  has  traveled 
under  the  light  and  guidance  of  our  proceedings  in  this  body. 

When  this  measure  was  pending  here,  the  point  dividing  its  supporters 
and  opponents  was  the  question  whether  we  had  any  constitutional  or 
moral  right  to  pass  it.  Some  of  its  opponents  said  it  violated  the  letter 
and  others  the  spirit  of  the  Constitution,  but  they  were  all  unanimous 
in  describing  it  as  a  long  step  toward  socialism.  Well,  these  objections 
have*  all  been  quieted.  Not  one  of  them  has  been  audible  since  the 
close  of  debate  here.  If  one  is  heard  occasionally  it  is  in  a  voice  so  feeble 
and  so  rare  that  it  merely  serves  to  attest  the  overwhelming  prepon- 
derance of  public  opinion.  Gentlemen  who  were  then  most  vehement 
in  opposing  it  now  claim  to  be  its  most  ardent  supporters.  One  after 
another  popularly  supposed  to  be  bitterly  hostile  to  it  objects  strenu- 
ously now  to  being  counted  among  its  opponents.  But  while  he  wants 
to  be  recognized  among  its  supporters,  he  protests  that  he  wishes  to 
perfect  it. 

Mr.  Chairman,  no  one  among  the  supporters  of  the  bill  objects  to 
any  suggestion  for  its  improvement.  But  I  believe  its  friends  should 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      255 

be  vigilant,  and  I  am  sure  they  will  be  vigilant,  to  see  that  under  cover 
of  attempts  to  perfect  the  measure  its  enemies  will  not  be  permitted  to 
emasculate  it.  We  must  see  that  it  is  not  destroyed  by  mutilation  dis- 
guised as  amendments,  now  that  efforts  to  destroy  it  by  open  opposition 
are  no  longer  considered  safe. 

Mr.  Chairman,  it  is  quite  true  that  although  the  grounds  of  criticism 
which  were  advanced  in  this  House  have  been  abandoned,  new  ones 
have  been  evolved,  which,  though  less  weighty,  enjoy  the  advantage  of 
not  having  been  subjected  to  the  test  of  our  scrutiny.  Of  these  the 
most  formidable  now  directed  against  this  bill  is  that  we  have  omitted 
to  provide  for  a  judicial  review  of  all  orders  made  by  the  Interstate 
Commerce  Commission.  For  that  reason  this  House  has  been  denounced 
as  incapable,  negligent,  and  indifferent.  Now  that  I  have  the  floor  I 
do  not  know  how  I  can  better  improve  the  time  at  my  disposal  than  by 
employing  some  of  it  in  refuting  this  criticism,  and  sending  it  to  join  all 
its  predecessors.  I  do  not  think,  sir,  that  will  be  a  very  difficult  task; 
I  think  the  very  slightest  examination  of  this  last  objection  will  show 
that  among  criticisms  it  deserves  to  be  classed  as  survival  of  the  loosest. 
[Laughter.] 

First,  Mr.  Chairman,  let  me  say  a  word  as  to  its  source.  This  objec- 
tion is  not  advanced  openly  by  the  interests  chiefly  affected  by  the  bill. 
It  proceeds  ostensibly  from  a  rather  new  product  of  our  constitutional 
evolution  —  the  constitutional  lawyer  —  the  great  constitutional  lawyer, 
who  chooses  a  legislative  body,  rather  than  a  judicial  tribunal,  for  the 
display  of  his  qualities. 

It  is  well  to  observe  that  the  constitutional  lawyer  of  a  legislative  body 
is  always  a  "great"  constitutional  lawyer. 

Now,  I  confess  that  I  regard  this  legislative  constitutional  lawyer  with 
something  of  the  awe  which  attaches  to  everything  beyond  our  compre- 
hension. [Laughter.]  I  do  not  know  that  I  am  able  to  describe  him. 
I  think  I  know  him  when  I  see  him,  for  he  has  certain  unmistakable 
characteristics.  But  to  describe  you  must  understand,  and  I  admit  he 
is  far  beyond  the  power  of  my  intellectuals.  Ordinarily  our  conception 
of  law  is  a  uniform  rule  of  conduct  made  binding  upon  all  members  of 
a  community,  or  at  least  on  the  large  majority  of  them,  by  the  sovereign 
authority,  whatever  it  may  be ;  and  the  function  of  the  lawyer,  we  plain 
mortals  believe,  is  to  ascertain  this  rule,  to  define  and  expound  it,  and 
thus  promote  unanimous  obedience  to  it.  But  while  the  essential  func- 
tion of  the  ordinary  lawyer  is  to  promote  uniformity  of  the  law,  the 
activities  of  the  great  constitutional  lawyer  in  a  legislative  body  produce 
radically  different  results.  Whenever  we  find  him  active  in  either  branch 
of  Congress  we  find  just  as  many  different  constitutions  as  there  are 
great  constitutional  lawyers  to  expound  the  organic  law. 

In  this  particular  case  the  constitutional  lawyers  all  declare  that  this 
bill  is  constitutionally  infirm  somehow  or  other,  but  no  two  of  them 


256  AMERICAN  FEDERAL   GOVERNMENT 

agree  in  pointing  out  the  precise  seat  of  infirmity.  The  constitutional 
lawyer  is  always  vehement  in  warning  us  that  before  we  undertake  any 
measure  we  must  be  sure  of  its  constitutionality;  that  he  alone  is  com- 
petent to  advise  us ;  that  next  to  the  duty  of  accepting  him  as  infallible 
comes  that  of  regarding  all  other  constitutional  lawyers  as  unsound,  if 
not  worse ;  that  we  must  be  wary  even  of  trusting  their  quotations  lest 
instead  of  giving  us  the  judgment  of  a  court  they  mislead  us  into  accept- 
ing as  its  decision  the  language  by  which  a  minority  seeks  to  show  that 
the  authority  of  the  majority  depended  entirely  upon  the  number  of 
judges  who  constituted  it,  not  upon  the  weight  of  reasons  which 
justified  it. 

Mr.  Chairman,  if  we  must  wait  until  the  great  constitutional  lawyers 
agree  upon  any  subject,  it  is  plain  that  we  would  never  take  a  step  in 
any  direction. 

We  would  stand  paralyzed  at  the  threshold  of  every  legislative  enter- 
prise, amazed  and  bewildered  —  puzzled  to  distinguish  amid  the  din 
of  their  vociferation  how  much  of  it  is  advice  to  us  and  how  much  of  it 
denunciation  of  each  other.  I  defy  any  man  to  define  Congress  itself 
according  to  the  constitutional  lawyers  after  he  has  read  three  of  their 
speeches.  [Laughter.]  Some  of  them  say  that  we  have  all  power,  others 
that  we  have  no  power.  Some  that  we  can  establish  our  authority  over 
the  courts,  that  we  can  not  only  confer  jurisdiction  on  them  or  withhold 
it,  as  we  please,  but  even  after  we  have  granted  t  that  we  can  control 
its  exercise  —  at  least  so  far  as  to  determine  what  persons  or  classes 
may  have  the  benefit  of  it ;  that  we  can  give  it  to  the  courts,  as  it  were, 
with  a  string,  so  that  a  writ  may  be  left  within  reach  of  our  favorites 
and  pulled  far  beyond  even  the  view  of  any  person  or  corporation  whom 
we  dislike  or  distrust.  Others,  again,  tell  us  that  we  are  not  even  an 
independent  or  coordinate  department  of  government,  but,  so  to  speak, 
an  antechamber  to  some  other  department;  that  our  power  consists 
in  merely  proposing  laws,  which,  by  the  permission  of  another  body, 
may  acquire  the  force  of  statutes. 

Now,  Mr.  Chairman,  to  me  —  an  ordinary  citizen,  an  humble  Mem- 
ber of  this  House  —  a  constitutional  lawyer  is  an  imposing  personage 
before  a  court  whose  authoritative  interpretations  of  the  Constitution 
he  aids  by  his  arguments.  For  that  very  reason,  sir,  it  seems  to  me  that 
a  legislative  body  is  not  the  proper  theater  for  disputatious  attorneyship, 
but  essentially  one  for  constructive  statesmanship.  I  can  not  believe 
that  the  function  of  Congress  is  a  mystery  difficult  to  comprehend  or 
the  duty  of  its  Members  a  puzzle  too  perplexing  for  the  ordinary  mind 
to  solve,  as  these  gentlemen  would  persuade  us. 

It  seems  to  me  that  the  duty  of  Congress  is  to  examine  closely  the 
condition  of  the  country  and  keep  itself  constantly  informed  of  every- 
thing affecting  the  common  welfare.  Wherever  a  wrong  is  found  to 
exist  with  which  the  nation  can  deal  more  effectively  than  a  State,  it  is 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      257 

the  business  of  Congress  to  suggest  a  remedy.  If  the  courts  hold  that 
the  legislation  we  consider  essential  is  beyond  our  power  to  enact,  our 
duty  to  suggest  a  remedy  is  none  the  less  binding,  except  that  instead 
of  proceeding  by  the  enactment  of  a  law  we  should  proceed  by  propos- 
ing a  constitutional  amendment.  Our  duty  to  propose  an  amendment 
to  the  Constitution  when  advisable  is  just  as  binding  as  our  duty  to 
change  the  law  when  that  is  within  our  power  and  we  believe  it  is  essen- 
tial to  the  welfare  of  the  citizens.  [Applause.]  If,  therefore,  we  find  that 
a  wrong  exists  anywhere  which  the  National  Government  in  our  judg- 
ment has  the  power  to  redress,  and  some  great  constitutional  lawyer 
should  undertake  to  raise  objections  with  that  wonderful  ingenuity  which 
enables  us  always  to  distinguish  him,  not  by  numerous  decisions  of  courts 
upholding  his  contentions,  but  by  the  wonder  and  awe  of  his  legislative 
associates  at  the  multiplicity  of  his  quotations,  the  strangeness  of  his 
phrases,  the  majesty  of  his  mien,  and  the  mystery  of  his  meaning  [laughter 
and  applause],  it  is  not  for  us  to  waste  time  in  abstract  and  fanciful  specu- 
lations about  the  course  which  the  courts  may  pursue  toward  the  reme- 
dial measures  we  may  enact.  Face  to  face  with  a  wrong  which  we 
believe  a  State  can  not  cure,  it  is  our  duty  to  find  a  remedy  some  way 
or  other.  Our  first  step  must  be  in  the  direction  of  legislation.  The 
only  way  we  can  ascertain  definitely  whether  a  law  which  we  believe 
will  prove  effective  is  constitutional  or  unconstitutional  is  not  by  aban- 
doning ourselves  to  a  maelstrom  of  speculations  about  what  the  court 
may  hold  or  has  held  on  subjects  more  or  less  kindred,  but  to  legislate, 
and  thus  take  the  judgment  of  the  court  on  that  specific  proposal.  We 
can  tell  whether  it  is  constitutional  or  unconstitutional  when  the  court 
pronounces  upon  it  and  not  before.  Even  if  the  court  declares  it 
unconstitutional  its  decision  will  not  reduce  us  to  helplessness.  When 
it  drives  us  from  establishing  a  remedy  by  legislation  it  will  by  that  very 
act  direct  us  to  propose  a  remedy  by  constitutional  amendment. 
Having  framed  a  suitable  amendment  and  proposed  it  to  the  legisla- 
tures of  the  States,  our  duty  will  have  been  accomplished.  The  final 
step  toward  full  redress  will  then  be  with  the  bodies  most  directly 
representative  of  the  people  affected  by  the  wrong. 


THE  COMMITTEE  SYSTEM1 

[The  following  extracts  are  taken  from  an  extended  debate  on  the  distribu- 
tion among  the  House  committees  of  the  various  parts  of  the  President's 
annual  message.  This  question  was  made  the  occasion  of  discussions  covering 
the  entire  field  of  national  policy.  The  particular  debate  here  reproduced  took 
place  immediately  after  the  resolution  for  the  distribution  had  been  reported  to 
the  House  by  Mr.  Payne,  chairman  of  the  Committee  on  Ways  and  Means. 

1  Congr.  Record,  Dec.  13-15,  1905. 


258  AMERICAN   FEDERAL   GOVERNMENT 

The  controversy  turned  especially  on  the  question  whether  bills  dealing  with 
insurance  should  be  referred  to  the  latter  committee.] 

MR.  HEPBURN.  Mr.  Chairman,  I  have  no  objection  to  the  resolution 
as  it  was  introduced  at  the  time  of  its  reference.  I  do  object  to  the  amend- 
ment made  in  the  fourth  line,  by  inserting  the  words  "and  insurance." 
The  effect  of  that- is  to  carry  all  matters  of  legislation  concerning  the 
control  of  insurance  to  the  Committee  on  Ways  and  Means;  and  the 
reason  assigned  for  that  is  that  in  the  opinion  of  the  Chairman  the  only 
manner  in  which  Congress  can  have  jurisdiction  over  that  subject  is 
through  the  exercise  of  the  taxing  power. 

Mr.  Chairman,  even  if  that  were  true,  that  would  not  indicate,  neces- 
sarily, the  direction  which  this  class  of  business  should  take  in  assignment 
to  committees.  It  is  true  that  all  matters  of  taxation,  where  taxation  — 
the  raising  of  revenue  —  is  th'e  object  to  be  attained,  should  be  considered 
by  the  Committee  on  Ways  and  Means ;  but  where  taxation  is  resorted 
to  solely  for  the  purpose  of  securing  jurisdiction,  solely  for  the  purpose  of 
the  exercise  of  a  power,  I  submit  that  it  is  not  the  rule  of  this  House  to 
send  matters  of  that  kind  to  that  Committee  —  notably  the  legislation 
with  reference  to  oleomargarine.  A  tax  nominal  was  resorted  to  only 
to  give  power  to  the  Congress,  or  justify  it  in  the  exercise  of  power.  Yet 
you  will  remember  that  that  matter  was  considered  and  reported  by 
the  Committee  on  Agriculture.  They  had  jurisdiction  of  it,  recognizing 
the  fact  that  the  assumption  upon  the  part  of  the  Committee  on  Ways 
and  Means  was  a  mere  fiction.  The  object  was  not  to  secure  revenue. 
The  object  was  to  secure  the  right  to  exercise  a  power.  Therefore  the 
taxing  power  was  resorted  to,  or  taxation  was  made  the  pretext.  There 
are  a  number  of  instances  that  might  be  given  where  this  rule  has  been 
observed  and  where  jurisdiction  of  the  Committee  on  Ways  and  Means 
has  been  denied,  notwithstanding  the  fact  that  a  nominal  tax  was  pro- 
vided for  in  the  legislation  sought. 

Mr.  Chairman,  I  am  willing  to  concede  that  there  is  more  than  one 
decision  of  the  Supreme  Court  in  which  it  has  been  held,  in  a  casual  way, 
that  insurance  was  not  commerce;  but  I  want  to  call  attention  to  the 
fact  that  that  was  not  the  major  proposition  considered  by  the  Supreme 
Court,  that  but  little  attention  was  paid  to  that  question  in  the  argument, 
that  that  was  simply  one  of  the  incidents  in  the  case ;  and  it  is  the  opinion 
of  a  great  many  men  learned  in  the  law  that  when  the  proposition  is 
fairly  made,  when  the  attention  of  the  Supreme  Court  is  called  to  the 
fact  of  the  immense  interest  there  is  in  insurance,  interwoven  inextricably 
with  trade,  when  it  is  remembered  that  the  annihilation  of  insurance 
would  well-nigh  annihilate  commerce,  that  thousands  and  tens  of 
thousands  of  commercial  enterprises  would  never  for  a  moment  be  con- 
sidered or  undertaken  but  for  the  auxiliary  of  insurance;  when  it  is 
shown  how  interwoven  insurance  is  with  all  commercial  transactions, 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      259 

with  the  millions  of  money  invested  in  trade  and  commerce,  that  another 
view  of  that  subject  may  be  taken.  And  I  want  to  call  attention  to  the 
fact  that  I  have -in  my  possession  a  bill  prepared  by  the  secretary  of  the 
National  Bar  Association,  and,  as  I  understand,  a  bill  that  met  with  their 
approval,  from  which  it  is  clear  that,  in  their  opinion  —  in  the  opinion 
of  the  National  Bar  Association  of  the  United  States  —  the  regulation 
of  insurance  companies  is  a  power  given  to  Congress  under  the  commerce 
clause  of  the  Constitution.  The  language  of  these  gentlemen,  as  used  in 
the  bill,  declares  that  the  writing  of  policies  and  other  business  of  that 
character  is  commerce,  and  therefore  it  is  a  power  conferred  by  the 
commerce  clause  of  the  Constitution. 

This  is  a  matter  of  importance.  I  want  to  call  attention  to  the  fact 
that,  so  far  as  there  is  any  precedent  upon  the  part  of  the  House,  you  will 
discover  from  that  precedent  that  the  Committee  on  Interstate  and 
Foreign  Commerce  had  jurisdiction  over  this  subject.  The  only  legisla- 
tion that  we  have  upon  that  subject  emanated  from  that  committee. 
That  committee  reported  the  bill  creating  the  Department  of  Commerce 
and  Labor,  by  which  there  is  created  a  Bureau  of  Corporations,  and  in 
express  terms,  with  the  other  conferments  of  power,  is  the  one  including 
insurance.  So  that,  so  far  as  precedent  goes,  I  think  the  gentleman  is 
wrong  in  his  assumption  that  the  committee  he  has  referred  to  and  over 
which  he  presides  (the  Committee  on  Ways  and  Means)  is  the  sole  com- 
mittee that  may  take  jurisdiction  of  this  subject. 

I  reserve  my  time,  but  I  will  yield  to  any  gentleman  who  desires  me  to 
do  so. 

******** 

Mr.  LACEY.  If  the  Committee  on  Interstate  Commerce  should  con- 
clude that  the  only  remedy  in  this  matter  is  by  taxation,  I  presume  they 
would  scarcely  report  a  bill  upon  that  question  for  fear  of  trespassing 
upon  the  jurisdiction  of  the  Ways  and  Means  Committee.  That  is  a 
question  we  will  worry  about  when  we  get  to  it ;  but  here  is  the  President's 
message  that  only  points  out  one  way  through  commerce,  and  that  would 
go  to  the  Committee  on  Interstate  Commerce,  not  the  Committee  on 
Ways  and  Means.  There  is  not  a  single  suggestion  anywhere  in  the 
message  that  there  is  any  thought  in  the  mind  of  the  Executive  that  the 
question  can  be  handled  through  the  taxing  power.  Possibly  it  could  be 
legislated  upon  in  that  way,  but  the  message  does  not  consider  anything 
of  that  kind  or  suggest  anything  of  the  kind  to  the  Congress,  and  therefore 
it  seems  to  me  clear  we  ought  not  to  adopt  this  amendment,  but  to 
leave  revenue  measures  to  go  to  the  Committee  on  Ways  and  Means, 
and  matters  connected  with  commerce  in  the  message  go  to  the  Committee 
on  Interstate  Commerce. 

The  CHAIRMAN.  Before  the  Chair  recognizes  the  gentleman  from 
Illinois,  does  the  gentleman  from  Iowa  desire  to  reserve  the  balance  of 
his  time? 


26o  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  HEPBURN.  I  desire  to  reserve  the  balance  of  my  time,  and  if  I 
can  be  recognized  I  would  desire  to  yield  five  minutes  to  the  gentleman 
from  Minnesota  [Mr.  Stevens]. 

Mr.  STEVENS  of  Minnesota.  This  subject  is  an  important  one,  but  the 
proposition  to  be  immediately  settled  is  not  novel.  It  seems  to  me  that 
similar  subjects  which  should  be  precedents  and  a  basis  for  our  action 
here  have  been  settled  by  the  House  in  previous  Congresses  with  the 
assent  of  the  Committee  on  Ways  and  Means,  and  especially  of  its  dis- 
tinguished chairman.  Now,  he  did  relate  somewhat  the  history  of  the 
oleomargarine  legislation,  but  he  omitted  especially  the  significant  course 
of  legislation  in  the  Fifty-sixth  and  Fifty-seventh  Congresses,  which  is 
of  the  greatest  interest  and  bearing  now.  The  history  of  that  legislation 
in  those  two  particular  Congresses  is  that  which  is  appropriate  to  the 
present  settlement  of  this  proposition.  There  were  several  bills  intro- 
duced in  the  Fifty-sixth  Congress  to  regulate  and  control  the  sale  of 
oleomargarine  by  means  of  the  taxing  power.  I  have  here  the  index  to 
Congressional  Record  of  the  first  session  of  the  Fifty-sixth  Congress. 
From  it  there  appears  to  have  been  six  bills  introduced  in  the  House, 
three  of  which  were  referred  to  the  Committee  on  Ways  and  Means. 

The  Record  shows  that  the  Committee  on  Ways  and  Means  took  no 
action  with  the  bills  referred  to  them.  The  Record  also  shows  that  the 
Committee  on  Agriculture  did  take  action  on  one  of  the  bills  —  H.  R.  37 17 
—  referred  to  it,  and  that  the  House  received  the  report  without  objection 
by  anybody  as  to  jurisdiction,  but  no  bill  passed.  The  Record  of  the 
Fifty-seventh  Congress  shows  that  there  were  eight  bills  introduced  in 
the  first  session  of  the  Fifty-seventh  Congress.  Seven  of  them  were  re- 
ferred to  the  Committee  on  Agriculture  —  and  one,  containing  other 
provisions,  was  referred  to  the  Committee  on  Ways  and  Means  —  H.  R. 
6534,  by  Mr.  Underwood,  of  Alabama,  which  by  its  terms  amended  the 
revenue  act  of  October  i,  1890.  The  especially  noticeable  fact  which 
the  House  should  know  is  this :  There  were  two  of  the  bills  introduced  in 
the  Fifty-sixth  Congress  providing  for  the  control  and  regulation  of  the 
subject  of  oleomargarine  by  means  of  the  taxing  power,  one  introduced 
by  my  colleague  from  Minnesota  [Mr.  Tawney]  and  one  by  my  friend 
from  Wisconsin  [Mr.  Davidson],  which  were  referred  to  the  Committee 
on  Ways  and  Means  in  the  Fifty-sixth  Congress.  In  the  Fifty-seventh 
Congress  those  almost  identical  bills,  introduced  by  those  same  gentle- 
men, were  referred  to  the  Committee  on  Agriculture  by  the  officials  of 
the  House  without  any  objection  from  the  chairman  of  the  Committee 
on  Ways  and  Means  or  from  the  Committee  on  Ways  and  Means  itself. 
And  the  bill  which  was  considered  in  the  Fifty-seventh  Congress,  the  bill 
which  actually  passed,  was  a  bill  introduced  by  Mr.  Henry,  of  Connecti- 
cut —  H.  R.  9206  —  which  was  referred  to  the  Committee  on  Agriculture, 
reported  by  that  Committee  to  the  House  and  considered  on  the  floor 
from  that  reference,  and  no  objection  was  made  by  the  Committee  on 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      261 

Ways  and  Means  or  by  anyone  else  to  the  jurisdiction  of  the  Committee 
on  Agriculture,  although  the  taxing  power  of  the  Government  was  in- 
voked by  the  measure.  So  that  the  history  of  that  legislation  which  bears 
the  closest  analogy  to  this  proposition  before  this  committee  shows, 
although  it  contained  provisions  for  the  taxing  powers,  which  were  even 
the  basis  for  its  action  and  existence,  yet  the  Committee  on  Ways  and 
Means,  although  at  first  it  assumed  or  received  jurisdiction  of  the  bills, 
afterwards  yielded  the  control  of  them,  for  the  very  good  reason  that  the 
main  subject  of  those  bills  and  the  main  purpose  of  that  legislation  was 
not  the  exercise  of  the  taxing  power,  but  the  power  to  regulate  and  control 
a  certain  subject-matter  which  should  be  considered  by  another  com- 
mittee. Now,  the  House  has  considered  and  settled  just  this  sort  of 
matter.  The  Committee  on  Ways  and  Means  has  already  considered 
them  and  yielded  jurisdiction  on  a  similar  subject  when  the  same  ques- 
tion was  involved,  and  that  seems  to  me 

Mr.  LITTLEFIELD.  May  I  ask  the  gentleman  from  Minnesota  a 
question  ? 

Mr.  STEVENS  of  Minnesota.    Certainly. 

Mr.  LITTLEFIELD.  I  have  listened  with  a  great  deal  of  interest  to  the 
analysis  of  what  was  or  was  not  legislation.  Now  what  I  would  like  to 
inquire  is  why  these  bills  that  went  before  the  Committee  on  Agriculture 
and  which  are  so  parallel  to  this  proposition  did  not  go  before  the  Inter- 
state and  Foreign  Commerce  Committee,  the  committee  that  now  wants 
to  get  possession  of  this  subject? 

Mr.  STEVENS  of  Minnesota.  That  is  just  the  point  I  wanted  to  make. 
The  House  evidently  considered  —  and  the  Committee  on  Ways  and 
Means  evidently  considered,  and  it  should  be  considered  now  —  that 
the  reference  of  any  bill  as  to  any  subject  should  be  to  the  committee 
which  has  general  charge  of  the  subject-matter  which  is  the  general  main 
purpose  of  the  bill.  If  the  general  purpose  of  the  bill,  if  the  general 
scope  of  the  legislation,  if  the  primary  object  for  its  enactment,  is  to 
raise  revenue,  even  if  it  taxes  insurance  companies  and  insurance  pol- 
icies, or  whatever  it  may  do,  and  because  of  that  regulate  them  in  certain 
ways  —  if  the  main  purpose  of  that  legislation  is  to  raise  revenue,  then  it 
unquestionably  should  go  to  the  Committee  on  Ways  and  Means.  But  if 
the  main  purpose  of  the  legislation  is  to  benefit  the  general  or  any  particu- 
lar agricultural  interests  of  the  country  —  is  to  vitally  affect  the  agri- 
cultural interests  of  the  country  —  and  its  incidental  purpose  is  to  use 
the  taxing  power,  this  House  has  decided  that  bill  should  go  to  the 
committee  which  had  general  charge  of  the  agricultural  interests  of  the 
country. 

Now,  if  the  main  purpose  of  this  bill  be  to  regulate  commerce,  is  to 
regulate  the  business  which  is  incidental  to  or  may  be  an  integral  part  of 
commerce,  regulate  the  general  object  which  concerns  commerce,  it 
should  go  to  the  committee  which  has  general  charge  of  the  subject  of 


262  AMERICAN   FEDERAL   GOVERNMENT 

commerce,  even  though  one  of  its  incidental  features  concerns  the  sub- 
ject of  taxation,  just  exactly  as  did  the  question  of  control  of  oleomarga- 
rine in  the  Fifty-seventh  Congress  go  to  the  committee  which  had  charge 
of  the  interests  which  were  most  and  vitally  affected. 

That  has  been  the  rule  in  the  past.  It  seems  to  me  to  be  a  safe  and 
salutary  rule  now  and  in  the  future,  one  that  ought  to  be  adopted  in  this 
House  on  all  sorts  of  subjects.  That  kind  of  a  rule  is  always  safe  and 
fair  to  all  interests  and  all  committees ;  and  under  that  rule  this  subject 
should  go  to  the  Committee  on  Interstate  and  Foreign  Commerce. 

Mr.  LITTLEFIELD.    Now  let  me  suggest  to  the  gentleman,  if  he  pleases. 

Mr.  STEVENS  of  Minnesota.    Certainly. 

Mr.  LITTLEFIELD.  That  very  reason  you  have  given  why  this  bill 
should  go  to  the  Committee  on  Interstate  and  Foreign  Commerce  applies 
with  equal  force  to  the  oleomargarine  proposition,  as  to  which  we  could 
not  legislate  at  all  except  under  the  interstate-commerce  clause  of  the 
Constitution.  Now,  why  did  not  your  Committee  on  Interstate  and 
Foreign  Commerce  at  that  time  assert  the  jurisdiction  that  they  are  now 
undertaking  to  assert,  when  there  were  just  exactly  the  same  reasons  for 
it  ?  You  had  one  bill  referred  to  the  Committee  on  Interstate  and  Foreign 
Commerce,  and  that  committee  quietly  let  that  bill  die  in  the  committee. 

The  CHAIRMAN.  The  time  of  the  gentleman  from  Minnesota  has 
expired.  The  gentleman  from  Iowa  has  eight  minutes  remaining. 

Mr.  LITTLEFIELD.  I  ask  unanimous  consent  that  the  gentleman  from 
Minnesota  may  have  five  minutes  more. 

The  CHAIRMAN.  Unanimous  consent  is  asked  that  the  gentleman  from 
Minnesota  have  five  minutes  in  his  own  right.  Is  there  objection? 
[After  a  pause.]  The  Chair  hears  none. 

Mr.  LITTLEFIELD.  It  seems  to  me  that  the  very  reason  you  have  given 
why  this  bill  should  go  to  the  Interstate  Commerce  Committee,  and  all 
the  reason  you  have  given  why  it  should  go  to  that  committee,  is  that  it  is 
interstate  commerce ;  all  the  reason  why  you  say  the  oleomargarine  prop- 
osition went  to  the  Committee  on  Agriculture  was  because  it  related  to 
agriculture.  Now,  this  proposition  relates  not  to  interstate  commerce, 
but  to  insurance.  There  was  a  Committee  on  Agriculture,  and  the 
oleomargarine  proposition  was  one  that  related  to  agriculture,  and  it 
went  to  the  Committee  on  Agriculture,  and  the  only  provision  under 
which  that  committee  could  get  jurisdiction  of  legislation  of  that  kind 
was  that  it  was  interstate  commerce,  and  that  is  exactly  the  same  juris- 
diction over  that  subject  that  you  have  over  this.  Why  did  you  not  assert 
that  jurisdiction  then? 

Mr.  STEVENS  of  Minnesota.  I  do  not  think  the  gentleman  from  Maine 
quite  apprehends  the  point  I  make.  It  seems  to  me  that  the  true  rule 
should  be  that  the  main  purpose  of  the  bill  should  be  primarily  con- 
sidered in  its  reference.  The  object  which  is  mainly  and  primarily  sought 
to  be  accomplished  should  determine  the  reference  of  the  bill.  Now,  in 


ORGANIZATION  AND  RULES  OF  THE  HOUSE      263 

the  oleomargarine  bill  the  main  purpose  of  the  bill  was  to  assist  the 
agricultural  interests  of  the  country.  It  was  subsidiary  and  an  incident 
that  it  related  to  the  question  of  interstate  commerce.  The  main  purpose 
of  that  legislation  was  to  assist  the  agricultural  interests ;  but  for  that  it 
would  not  have  been  passed  or  enacted.  This  House  did  exactly  right 
in  considering  the  main  purpose  and  object  of  that  legislation  in  making 
the  reference  to  the  committee  which  had  charge  of  the  principal  subject- 
matter  of  agriculture.  Now,  in  this  case,  insurance  is  incidental  at  least 
to  commerce ;  it  is  part,  an  integral  part,  of  a  business  which  is  concerned 
with  the  subject  of  commerce ;  if  it  exists  at  all,  it  must  be  as  a  part  of  the 
great  business  interests  of  the  country  and  of  the  great  commercial 
interests  of  the  country,  and  that  subject-matter  goes,  by  our  rules, 
to  the  Committee  on  Interstate  and  Foreign  Commerce. 

******** 

Mr.  PAYNE.  Mr.  Chairman,  to  return  to  the  subject  of  this  resolution 
and  the  amendment  offered  to  it  referring  this  message,  so  far  as  it  relates 
to  matters  of  insurance,  to  the  Committee  on  Ways  and  Means,  I  wish  to 
discuss  that  question  briefly. 

There  can  be  no  doubt  but  that  all  bills  raising  a  tax  go  to  the  Commit- 
tee on  Ways  and  Means,  no  matter  what  may  be  their  nature.  They  go 
there  under  the  rule. 

The  gentleman  from  Iowa  [Mr.  Hepburn]  yesterday,  in  speaking  of  the 
matter,  announced  a  rather  novel  and  strange  doctrine.  He  said : 

Therefore  the  taxing  power  was  resorted  to.  The  taxation  was  made  the 
pretext  — 

And  from  reading  the  context  it  would  seem  from  the  tenor  of  his  re- 
marks that  in  various  laws  passed  by  Congress  taxation  was  made  the 
pretext  to  give  Congress  the  jurisdiction  of  the  subject-matter.  Now,  of 
course,  it  is  patent  to  every  lawyer  in  the  House  that  if  the  House  should 
enact  a  law  and  put  into  the  law  itself  the  statement  that  the  taxation  was 
simply  a  pretext  to  get  jurisdiction  over  the  matter  the  Supreme  Court 
would  promptly  declare  the  law  unconstitutional;  and  where  any  of 
these  laws  which  the  gentleman  characterizes  in  this  manner  have  gone 
to  the  Supreme  Court  on  their  constitutionality  the  Supreme  Court  has 
examined  the  law,  and  when  it  found  that  the  law  imposed  a  tax  they 
have  promptly  said  that  under  the  Constitution  Congress  had  jurisdic- 
tion, but  if  the  tax  was  a  mere  pretense  Congress  would  have  no  juris- 
diction. No  committee  would  have  any  jurisdiction.  Congress  has  no 
jurisdiction  over  the  subject  of  insurance  unless  it  can  get  it  under  the 
taxing  power  of  the  Government,  as  I  shall  proceed  to  show  later  on  in 
numerous  decisions  of  the  Supreme  Court  of  the  United  States  where  that 
subject  was  involved  in  the  decision  of  the  case. 

Mr.  SMITH  of  Iowa.  Mr.  Chairman,  may  I  put  a  question  to  the 
gentleman  ? 


264  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  PAYNE.  I  would  rather  the  gentleman  would  not  interrupt  me 
now.  If  he  will  wait  until  I  finish,  then  he  can  put  his  question. 

Mr.  SMITH  of  Iowa.    Very  well. 

Mr.  PAYNE.  The  gentleman  from  Iowa  [Mr.  Hepburn]  yesterday 
cited  what  he  said  was  a  precedent  for  this  action,  and  that  was  the  bill 
imposing  a  tax  on  oleomargarine.  I  have  quite  a  vivid  recollection  of 
what  occurred  at  that  time,  because  it  occurred  during  my  early  service 
in  Congress,  and  I  was  curious  to  see  how  the  House  would  get  at  a  sub- 
ject when  it  was  bent  on  doing  so,  rule  or  no  rule. 

The  bill  came  here  first  in  1882.  That  was  before  I  broke  into  Con- 
gress, and  it  was  referred  to  the  Committee  on  Ways  and  Means  under 
the  rules.  It  was  a  bill  to  tax  oleomargarine.  There  was  a  suspicion  in 
the  House,  as  well  as  in  the  country,  that  the  object  of  that  law  was  to  tax 
oleomargarine  out  of  existence.  Nevertheless,  the  bill  went  to  the  Com- 
mittee on  Ways  and  Means.  Why?  Because  it  raised  revenue;  be- 
cause by  its  terms  it  imposed  a  tax.  No  one  doubted  then  but  that  that 
was  the  proper  reference. 

In  1886  the  same  bill  was  introduced  in  the  House  and  the  same  bill 
was  referred  to  the  Committee  on  Ways  and  Means.  I  think  it  was  re- 
ferred there  in  the  first  instance  properly  under  the  rules  of  the  House. 
Mr.  Hatch,  of  Missouri,  chairman  of  the  Committee  on  Agriculture,  had 
very  pronounced  views  on  the  subject  of  the  suppression  of  oleomarga- 
rine. I  do  not  remember  whether  the  bill  was  introduced  by  him  or  not, 
but  he  had  a  suspicion  that  the  bill  would  go  to  sleep  in  the  Committee  on 
Ways  and  Means.  They  had  not  reported  it.  It  was  rumored  that  that 
committee  was  opposed  to  the  bill  and  opposed  to  the  proposed  legislation, 
and  in  order  to  get  the  bill  out  of  the  Committee  on  Ways  and  Means  and 
get  it  into  more  friendly  atmosphere  Mr.  Hatch  made  the  motion  in  the 
House  to  discharge  the  Committee  on  Ways  and  Means  from  the  fur- 
ther consideration  of  that  bill  and  to  refer  it  to  the  Committee  on  Agri- 
culture, of  which  he  was  chairman. 

After  some  debate,  from  which  it  appeared  that  the  House  was  over- 
whelmingly for  the  bill,  a  very  large  majority  representing  their  farmer 
constitutents  here  on  the  floor  of  the  House  having  gotten  the  idea  that 
this  law,  if  enacted,  was  going  to  greatly  improve  the  condition  of  agricul- 
ture, and  especially  the  dairy  farming  in  the  United  States,  anxious  as 
they  were  to  have  an  immediate  action  upon  this  bill  and  get  it  before  a 
committee  that  would  report  it  to  the  House,  by  a  vote  of  67  to  40,  as  I 
am  informed,  the  bill  was  taken  from  the  Committee  on  Ways  and  Means 
and  referred  to  the  Committee  on  Argiculture,  and  the  bill  was  reported 
and  afterwards  became  a  law.  That  is  the  origin  of  the  oleomargarine 
law. 

Since  that  time  in  various  Congresses,  since  my  friend  from  Iowa  has 
become  chairman  of  the  great  Committee  on  Interstate  and  Foreign 
Commerce,  various  bills  of  like  character  —  a  bill  taxing  filled  cheese, 


ORGANIZATION  AND   RULES    OF   THE   HOUSE     265 

the  bill  taxing  impure  flour,  and  bills  of  that  nature  —  have  been  intro- 
duced in  the  House  and  referred  invariably  to  the  Committee  on  Ways 
and  Means  and  reported  by  that  committee,  and  have  become  a  part  of 
the  law  of  the  country  from  such  reference  and  reports. 

No  one  ever  doubted  that  the  proper  place  for  these  bills  was  with  the 
Committee  on  Ways  and  Means.  I  do  not  know  whether  the  gentleman 
from  Iowa  claims  that  his  committee  has  jurisdiction  over  the  subject  of 
insurance  or  not,  but  it  seems  to  me  that  if  any  legislation  is  proposed  on 
this  subject  the  Committee  on  Interstate  and  Foreign  Commerce  has  no 
more  pretense  to  a  right  of  jurisdiction  than  has  the  Committee  on  Ex- 
penditures in  the  Interior  Department. 

TACTICS   OF   THE   OPPOSITION.     ACCOUNT   OF   THE 
OPPOSITION   MOVEMENT 

[The  parliamentary  tactics  employed  by  the  leader  of  the  minority  in  the 
first  session  of  the  6oth  Congress,  1908,  are  of  great  interest.  They  were 
avowedly  planned  not  for  the  purpose  of  obstructing  legislation,  but  enforcing 
action  of  the  House  upon  certain  measures.  The  method  of  obstruction 
employed  by  the  minority  leader  was  to  make  use  on  every  possible  occasion 
of  the  constitutional  right  to  have  the  yeas  and  nays  taken  on  a  motion.  The 
first  extract  is  an  account  of  the  whole  proceeding,  from  the  point  of  view  of  the 
opposition.  The  attitude  of  the  majority  leaders  toward  the  movement  is 
brought  out  in  the  debate  itself.] 

BY  REPRESENTATIVE  HENRY  T.  RAiNEY1 

MR.  RAINEY  said: 

Mr.  Speaker :  Under  the  general  leave  to  print  I  desire  to  submit  the 
following  brief  review  of  the  attempt  by  the  Hon.  John  Sharp  Williams, 
of  Mississippi,  the  Democratic  leader  in  the  House  of  Representatives, 
to  compel  the  enactment  of  the  legislation  demanded  by  the  country  at 
the  present  time.  In  his  effort  to  compel  the  enactment  of  certain  needed 
legislation  Mr.  W7illiams  received  the  united  and  active  support  of  the 
Democratic  minority  in  the  House  from  the  moment  the  movement  com- 
menced until  the  adjournment  of  Congress. 

At  the  opening  of  the  Sixtieth  Congress  the  following  legislation  was 
universally  demanded: 

1.  An  employers'  liability  bill. 

2.  A  bill  providing  for  publicity  of  campaign  contributions. 

3.  A  bill  placing  wood  pulp  and  print  paper  on  the  free  list. 

4.  An  anti-injunction  bill. 

The  first  session  of  the  Sixtieth  Congress  commenced  at  noon,  Decem- 
ber 2,  1907,  and  from  that  time  until  January  7,  when  Congress  recon- 
vened, after  the  holiday  recess  the  House  was  in  actual  session  just 

1    Congr.  Record,  June  5,  1908. 


266  AMERICAN   FEDERAL   GOVERNMENT 

fourteen  hours  and  five  minutes.  During  that  time  the  House  adjourned 
for  two  weeks  on  account  of  the  holiday  recess.  Up  to  the  24th  day  of 
March  the  House  was  in  session  ninety  days.  The  average  daily  length  of 
each  session  was  three  hours  and  sixteen  minutes.  From  the  beginning 
of  the  session  until  the  24th  day  of  March  only  three  bills  of  public  im- 
portance had  been  passed,  to  wit: 

An  act  providing  for  an  immigration  station  in  Philadelphia,  and  ap- 
propriating $250,000  therefor; 

The  urgent  deficiency  appropriation  bill ;   and 

The  bill  to  increase  the  efficiency  of  the  personnel  of  the  Life-Saving 
Service. 

Up  to  that  time  only  one  joint  resolution  had  been  passed,  to  wit,  a 
resolution  inviting  other  countries  to  send  representatives  to  the  Inter- 
national Congress  of  Tuberculosis. 

The  above  bills  and  the  above  joint  resolution  represent  the  sum  total 
of  the  activities  of  the  Sixtieth  Congress  for  the  first  four  months  of  the 
session  which  closes  to-day. 

There  is  not  much  a  minority  can  do  to  compel  legislation  on  the  part 
of  the  majority.  A  minority,  however,  has  certain  rights  under  the  Con- 
stitution which  can  not  be  taken  away.  Among  these  rights  is  a  right  to 
demand  roll  calls,  and  this  right  the  minority  have  asserted  from  the  24th 
day  of  March  until  to-day. 

On  the  24th  day  of  March,  1908,  Mr.  Williams,  the  minority  leader, 
on  behalf  of  the  Democratic  minority,  demanded  the  enactment  of  cer- 
tain legislation.  [His  speech  on  that  occasion  is  given  on  p.  271.] 

The  first  roll  call  demanded  by  Mr.  Williams  in  pursuance  of  his  an- 
nounced purpose  occurred  on  March  30,  just  two  months  prior  to  the  ad- 
journment date,  and  the  period  of  the  activity  of  the  Sixtieth  Congress 
commenced  also  on  that  date.  During  the  remainder  of  the  Session  fol- 
lowing the  inauguration  of  the  aggressive  campaign  of  the  Democrats, 
under  the  leadership  of  Mr.  Williams,  for  needed  legislation  between  the 
3oth  day  of  March  and  the  3oth  day  of  May  the  House  passed  thirty-one 
important  public  bills  and  four  important  public  joint  resolutions.  Dur- 
ing that  period  of  time  the  Committee  on  Rules  exerted  its  strength  against 
the  aggressive  policy  of  the  minority  leader  and,  among  other  rules,  it 
reported  out  the  following,  all  of  which  were  passed  by  a  strict  party 
vote: 

(P.  4462.)  Mr.  Payne,  from  the  Committee  on  Rules,  reported  out 
an  order  for  the  consideration  of  H.  R.  233  for  the  distribution  of  the 
President's  message;  and 

(P.  4467.)    Moves  closure  of  debate. 

(P.  4495.)  Mr.  Dalzell,  from  the  Committee  on  Rules,  brought  in  a 
rule  the  effect  of  which  was  to  revoke  the  previous  unanimous  consent  of 
the  House  for  eight  hours  of  debate  on  the  District  appropriation  bill,  al- 
lowing two  hours  only. 


ORGANIZATION   AND   RULES   OF   THE   HOUSE     267 

(P.  4513.)  A  sweeping  rule  was  brought  in  by  Mr.  Dalzell,  which 
provided  that  all  Senate  amendments  to  general  appropriation  bills 
should  be  agreed  or  disagreed  to  en  bloc.  The  rule  also  provided  that  a 
motion  for  a  recess  should  be  a  privileged  motion.  It  also  provided  for 
closing  debate  by  motion  in  the  House  before  going  into  the  Committee 
of  the  Whole  —  the  motion  not  to  be  subject  to  debate  or  amendment. 
In  his  speech  reporting  this  rule  Mr.  Dalzell  admitted  that  the  rule  was 
brought  in  for  the  purpose  of  counteracting  Mr.  Williams's  tactics.  [See 

P-  273-l 

(P.  4675.)  A  rule  was  brought  in  declaring  recesses  in  advance  from 
day  to  day  for  the  current  week.  It  also  provided  for  the  closing  of  de- 
bate on  the  naval  appropriation  bill. 

(P.  4684.)  A  rule  was  reported  providing  that  whenever  a  general 
appropriation  Bill  is  reported  favorably  from  the  committee  on  the  bill 
it  shall  be  in  order  to  apply  to  it  in  the  House  a  motion  to  suspend  the 
rules  under  the  conditions  prescribed  in  Rule  XXVIII,  except  a  vote 
shall  be  by  a  majority  instead  of  two-thirds. 

The  above  are  some  of  the  arbitrary  rules  brought  in  to  counteract  the 
effect  of  the  tactics  of  the  minority  leader.  More  time  was  consumed  in 
discussing  and  in  voting  on  the  above  rules  than  would  have  been  required 
to  have  discussed  and  to  have  passed  bills  on  all  the  matters  referred  to 
by  Mr.  Williams  on  the  24th  day  of  March. 

On  the  26th  day  of  March  the  President  sent  to  Congress  a  special 
message  advising,  among  other  things,  in  substance,  the  legislation  de- 
manded by  the  minority  leader.  The  Democrats,  under  the  leadership 
of  Mr.  Williams,  compelled  the  adoption  of  an  employers'  liability  bill, 
which  was  approved  April  22,  1908,  and  is  known  as  "  Public  bill  No. 
100." 

The  other  three  demands  of  the  minority  leader  have  not  been  com- 
plied with  by  the  Republicans. 


PUBLICITY  OF  CAMPAIGN  CONTRIBUTIONS 

The  Republican  majority,  in  pretended  compliance  with  the  Demo- 
cratic demands  for  publicity  of  campaign  contributions,  compelled  the 
passage  by  a  strict  party  vote  in  the  House  of  Representatives  on  the  i2th 
day  of  May,  1908,  of  the  following  bill: 

An  act  (H.  R.  20112)  providing  for  publicity  of  contributions  made  for  the 
purpose  of  influencing  elections  at  which  Representatives  in  Congress  are 
elected,  prohibiting  fraud  in  registrations  and  elections,  and  providing  data 
for  the  apportionment  of  Representatives  among  the  States. 

The  above  measure  is  a  combination  of  the  McCall  publicity  bill,  the 
Federal  election  bill,  and  an  effort  to  take  the  preliminary  steps  toward  re- 


268  AMERICAN   FEDERAL   GOVERNMENT 

ducing  Southern  representation  in  the  House  of  Representatives.  It  was 
passed  through  the  House  against  a  protest  of  the  Democrats,  and  with 
the  knowledge  that  it  could  not  possibly  under  any  consideration  pass  the 
Senate.  The  country  was  demanding  an  act  providing  for  publicity  of 
campaign  contributions.  The  investigations  of  the  life-insurance  com- 
panies in  New  York,  recently  finished,  disclosed  the  necessity  of  legisla- 
tion of  this  character.  The  tremendous  corrupting  influences  of  contribu- 
tions by  the  Standard  Oil  Company,  the  steel  trust,  the  life-insurance 
companies,  and  other  great  corporations  of  the  Republican  campaign 
funds  from  1896  to  date  discloses  the  immediate  necessity  for  publicity. 
This  legislation  was  universally  demanded.  The  bill  met  its  fate  in  the 
Senate,  as  predicted  in  the  House,  on  the  28th  day  of  May  —  two  days 
ago.  It  was  impossible  to  get  it  through  the  Senate  with  the  objection- 
able provisions  attached. 

I  quote  from  a  part  of  the  debate  in  the  Senate  on  that  day  on  the  sub- 
ject. (Congressional  Record,  p.  7505,  first  session  Sixtieth  Congress) : 

Mr.  CULBERSON.  There  is  another  important  matter,  Mr.  President,  which 
the  Senator,  I  trust,  will  pardon  me  for  calling  his  attention  to  at  this  time, 
measures  which  are  pending  with  reference  to  the  publicity  of  campaign  con- 
tributions. I  ask  the  Senator  if  we  may  expect  any  legislation  on  that  subject 
at  this  session? 

Mr.  ALDRICH.  I  am  also  without  authority  to  speak  for  anybody  but  myself. 
There  is  a  measure  pending  in  the  Committee  on  Privileges  and  Elections 
which  comes  here  from  the  House  of  Representatives,  and  I  can  only  say,  as 
far  as  I  am  personally  concerned,  if  the  Senator  desires  a  vote  on  that  measure 
this  afternoon  or  any  hour  to-day  or  to-morrow,  without  further  debate,  after 
the  pending  conference  report  is  disposed  of,  I  certainly  shall  make  no  objection 
to  that  request. 

Mr.  CULBERSON.  Does  the  Senator  refer  to  what  is  known  as  "the  McCall 
publicity  bill?" 

Mr.  ALDRICH.  I  refer  to  the  bill  which  came  here  on  that  subject  from  the 
House  of  Representatives,  and  which  is  now  pending  in  the  Committee  on 
Privileges  and  Elections. 

Mr.  CULBERSON!  But  my  inquiry  was  with  reference  to  a  publicity  bill  pure 
and  simple,  unmixed  with  other  political  matters. 

Mr.  ALDRICH.  The  publicity  bill  that  is  before  the  Senate  is  associated 
with  other  provisions  in  regard  to  changes  in  election  laws.  The  Senate  cannot 
disassociate  those  two  items.  It  the  Senator  desires  legislation  upon  the  sub- 
ject, of  course  it  must  be  legislation  with  the  concurrence  of  the  House  of 
Representatives,  and  those  two  things  cannot  be  separated.  Of  course,  if  we 
should  agree  to  take  a  vote  upon  the  subject  and  fix  a  time  and  the  Senate 
should  disagree  to  that  provision,  then  the  matter  would  be  in  conference.  But 
I  am  quite  willing,  speaking  for  myself,  to  fix  a  time  immediately  after  the  dis- 
position of  the  pending  conference  report  for  a  vote  upon  the  House  proposition 
without  further  amendment. 

Mr.  CULBERSON.  The  Senator,  then,  I  assume,  so  far  as  he  is  concerned  — 
and  of  course  we  know  the  extent  to  which  he  speaks —  is  unable  to  give  us 


ORGANIZATION   AND   RULES   OF   THE   HOUSE     269 

any  assurance  that  a  publicity  bill  pure  and  simple,  unmixed  with  the  bill,  I 
will  state  frankly,  concerning  representation,  will  be  acted  upon  at  this  session 
and  be  passed. 

Mr.  ALDRICH.  There  is  no  possible  way  in  which  the  Senate  can  bring  the 
matter  to  a  test  vote  except  by  taking  up  the  House  bill,  so  far  as  I  can  see.  If 
we  are  to  have  effective  legislation  upon  the  subject,  it  must  be,  as  I  said  before, 
by  concurrence  of  the  two  Houses;  and  I  shall  join  with  pleasure  the  Senators 
upon  the  other  side,  if  they  desire  to  have  a  time  fixed  for  a  vote  upon  that 
proposition,  in  acceding  to  their  request. 

Mr.  BACON.  With  the  permission  of  the  Senator  from  Texas,  I  desire  to 
make  a  suggestion  to  the  Senator  from  Rhode  Island  in  that  connection.  There 
are  some  things  in  which  parties  and  Senators  are  at  variance.  Of  course  we 
recognize  that  there  are  some  things  in  which  there  is  controversy,  some  things 
in  which  there  is  a  diversity  of  opinion  and  of  wish.  There  are  other  things  in 
which  there  is,  on  the  part  of  Senators  of  both  political  parties,  a  profession  of 
unanimity  of  purpose  and  of  desire. 

Now,  both  parties 'represented  in  this  Chamber,  and  those  outside  of  this 
Chamber  who  are  recognized  as  the  leaders  of  the  parties  in  the  country  at 
large,  avow  that  they  are  at  one  upon  one  subject,  that  they  are  in  perfect 
unison  and  accord  on  the  subject  of  the  requirement  of  publicity  in  connection 
with  campaign  funds  and  contributions. 

Mr.  ALDRICH.  Will  the  Senator  from  Georgia  state  to  whom  he  refers? 
I  would  be  glad  to  have  the  Senator  state  definitely  to  whom  he  refers  as  the 
leaders  of  the  two  parties. 

Mr.  BACON.  I  can  only  speak  of  what  appeared  in  the  press.  I  am  not 
speaking  otherwise  than  what  has  been  given  out  in  an  authoritative  manner. 
There  are  some  who  in  the  public  press  assume  to  be  leaders  and  express  them- 
selves in  that  way.  But  I  am  not  speaking  of  that  except  simply  by  way  of  a 
side  matter.  I  am  speaking  about  what  concerns  us  in  this  Chamber,  to  wit, 
the  profession  on  the  part  of  Senators  on  each  side  of  the  Chamber  that  we  are 
in  favor  of  the  passage  of  a  law  which  shall  make  public  the  contributions  for 
campaign  purposes  prior  to  an  election.  I  suppose  there  is  no  Senator  here 
who  will  rise  in  his  place  and  say  he  does  not  favor  that. 

Now,  that  being  a  matter  in  which  we  are  professedly  in  absolute  accord, 
the  suggestion  I  wish  to  make  to  the  Senator  is  that  if  in  truth  we  are  in  accord, 
if  it  is  true  that  in  good  faith  that  profession  is  made,  then  the  matter  which  is 
thus  without  controversy  can  be  easily  disposed  of  without  debate  and  without 
reference  to  committees  or  anything  else.  We  can  pass  the  measure  in  five 
minutes  if  it  is  limited  to  the  publicity  feature,  whereas  the  Senator  well  knows 
that  to  attach  to  it  a  matter  which  is  in  controversy  and  about  which  there  is 
not  a  concord  of  sentiment  it  must  necessarilv  at  this  time  defeat  the  one  about 
which  there  is  no  diversity  of  opinion. 

That  being  the  case,  I  suppose  of  course  it  has  occurred  to  the  Senator  — 
but  I  thought  I  would  take  the  liberty  of  suggesting  it  —  that  the  plain,  simple 
way,  we  desire  really  to  carry  out  our  professions  relative  to  requiring  pub- 
licity of  campaign  contributions,  is  to  limit  our  consideration  and  our  action 
to  that  matter  about  which  there  is  professedly  no  diversity  of  opinion. 

I  said  I  supposed  there  was  no  Senator  in  this  Chamber  who  would  rise  in 
his  place  and  say  that  he  did  not  favor  the  publicity  bill.  Then  I  would  ask 
every  Senator  to  ask  himself  the  question  whether  it  is  acting  in  good  faith  to 


270  AMERICAN   FEDERAL   GOVERNMENT 

attach  to  that  measure  relative  to  publicity  another  measure  which  does  pro- 
duce controversy  and  about  which  we  are  disagreed  and  the  inevitable  conse- 
quence of  which  must  be  to  defeat  that  which  they  profess  a  desire  to 
accomplish. 

It  it  be  true  that  our  profession  is  sincere  on  both  sides,  if  it  be  true  that  each 
of  us,  without  exception,  favors  the  enactment  of  a  law  which  shall  require 
publicity  as  to  contributions  for  campaign  funds,  why  is  it  that  we  cannot 
make  good  that  profession  by  an  act  which  it  is  easy  for  us  to  accomplish  by 
simply  saying  that  we  will  pass  a  bill  which  shall  relate  to  that  and  to  nothing 
else? 

Mr.  CULBERSON.  Mr.  President,  I  am  obliged  to  the  Senator  from  Georgia 
for  the  suggestion  which  he  has  made  and  to  which  no  reply  so  far  has  been 
made  by  the  Senator  from  Rhode  Island,  to  whom  I  yield  if  he  desires  to  make 
a  reply  now.  If  he  does  not  see  proper  to  reply  further,  I  assume  —  and  if  my 
assumption  is  not  well  founded,  I  hope  that  I  may  be  corrected —  that  there 
is  no  possibility  of  passing  an  anti-injunction  bill  at  this  session  of  Congress, 
nor  is  there  any  probability  or  any  possibility  of  passing  a  bill  providing  for  the 
publication  of  campaign  contributions,  pure  and  simple. 


WOOD  PULP  AND  PRINT  PAPER 

No  attempt  was  made  to  pass  this  legislation  so  universally  demanded 
by  the  newspapers  of  the  country.  A  committee  was  appointed  to  investi- 
gate the  matter.  The  method  usually  adopted  for  the  postponing  of  legis- 
lation is  by  the  appointment  of  committees.  The  committee  met  and 
heard  the  complaints  of  the  publishers.  They  are  still  meeting.  The 
investigation  is  not  over. 


THE  ANTI-INJUNCTION  BILL 

No  attempt  was  made  to  pass  this  legislation.  The  majority  leader 
[Mr.  Payne],  however,  introduced  the  following  bill: 

A  bill  (H.  R.  21359)  relating  to  injunctions. 

Be  it  enacted,  etc.,  That  hereafter  no  preliminary  injunction  or  restraining 
order  shall  be  granted  by  any  judge  or  court  without  notice  to  the  party  sought 
to  be  enjoined  or  restrained,  unless  it  shall  appear  to  the  satisfaction  of  the 
court  or  judge  to  whom  application  for  such  injunction  or  restraining  order 
is  made  that  the  immediate  issue  of  such  injunction  or  restraining  order  is 
necessary  to  prevent  irreparable  damage. 

SEC.  2.  That  any  such  injunction  or  restraining  order  granted  shall  con- 
tain a  rule  on  the  opposite  party  to  show  cause  within  five  days  whv  such  in- 
junction or  restraining  order  shall  not  be  continued. 

The  above  bill  may  therefore  be  considered  to  be  the  Republican 
measure  relating  to  injunctions.  I  submit  that  if  enacted  into  law  it 
would  not  afford  the  slightest  relief. 


ORGANIZATION   AND   RULES    OF   THE   HOUSE     271 

The  Democratic  minority  in  the  House  has  done  all  it  could  to  compel 
the  enactment  of  the  legislation  so  universally  demanded  on  these  ques- 
tions. We  are  willing  to  go  to  the  country  on  the  record  we  have  made. 
The  charge  that  the  Democratic  party  as  represented  in  Congress  will 
not  follow  a  leader  has  been  answered  on  all  of  the  above  questions.  The 
party  was  united  always  and  presented  a  solid  front  to  the  enemy. 

The  only  measure  passed  by  the  Republicans  in  response  to  the  uni- 
versal demands  of  the  people  was  an  employers'  liability  bill  of 
doubtful  constitutionality.  If  its  constitutionality  had  been  clear  it  prob- 
ably would  not  have  been  by  the  majority  permitted  to  pass. 


REPRESENTATIVE   J.    S.    WILLIAMS   ANNOUNCES 
HIS    POLICY1 

[The  following  extracts  embody  illustrations  of  the  progress  of  the  attempt 
of  Mr.  Williams  to  force  certain  action  by  the  House.  On  March  24,  he  an- 
nounced his  policy.  Thereafter  there  was  much  debating  combined  with  the 
dilatory  tactics.  Special  rules  were  brought  in  on  April  4,  April  20,  and  other 
days  for  the  purpose  of  shackling  the  opposition ;  and  on  May  13,  Mr.  Williams 
compared  his  methods  with  those  of  earlier  filibusters.  The  incidental  illus- 
tration which  this  action  affords  in  the  matter  of  rules  and  practice  in  the 
House  is  very  important.] 

MR.  WILLIAMS.  Now,  Mr.  Chairman,  I  believe  that  the  country,  and 
I  believe  that  the  Members  of  the  House  upon  the  Republican  side  of  the 
aisle  will  agree  with  me  that,  acting  as  minority  leader,  thus  far  this  ses- 
sion I  have  given  the  majority  perfectly  "  smooth  sailing."  I  have  not 
wanted  to  be  regarded  as  factious;  I  have  not  wanted  the  country  to 
think  that  the  minority  on  this  side  was  trying  to  assume  responsibility 
for  legislation.  I  knew  that  responsibility  rested  with  the  majority,  and  I 
did  not  want  to  appear  to  coerce  the  majority  —  and  very  little  coercing 
can  the  minority  do  —  until  that  majority  had  made  absolute  demonstra- 
tion before  the  country  of  the  fact  that  it  does  not  intend  to  do  anything 
at  this  session  of  Congress.  [Applause  on  the  Democratic  side.]  And 
that,  too,  notwithstanding  the  fact  that  your  President  has  issued  a  pro- 
gramme that  he  calls  upon  you  to  execute,  and  notwithstanding  the  fact 
that  the  distinguished  gentleman  from  Iowa  [Mr.  Hepburn]  announced 
early  in  the  session  that  unless  you  did  execute  that  programme  some- 
body was  going  to  "get  run  over"  and  "get  hurt." 

I  have  waited  like  a  Democratic  lamb  ready  for  the  slaughter,  waiting 
for  the  Republican  party  to  do  something.  I  have  finally  come  to  the 
conclusion  that  the  Republican  party  in  this  House  has  forgotten  how  to 
do  anything;  it  has  become  the  party  of  negation,  of  passivity,  and,  as 

1  Congr.  Record,  Mch.  24,  1908. 


272  AMERICAN   FEDERAL   GOVERNMENT 

far  as  I  can  see,  has  no  idea  of  doing  anything.  [Applause  on  Democratic 
side.]  It  is  plain  now  that  without  some  method  of  parliamentary  coercion 
you  are  going  to  be  deaf  to  every  demand  of  the  country.  The  minority 
can  not  exercise  much  power,  but  it  has  some  power,  and  I  want  to  make 
the  announcement  now,  that  from  this  moment  on  to  the  balance  of  this 
session  this  is  not  going  to  be  a  lie-easy,  wait-on-the-enemy  campaign 
[applause  on  the  Democratic  side],  and  that  the  little  parliamentary 
power  the  minority  has  under  the  rules  is  going  to  be  exercised.  The 
minority  has  a  right  to  refuse  unanimous  consent  to  legislation.  It  has 
the  right  to  call  for  the  yeas  and  nays  upon  every  affirmative  matter  of 
legislation.  I  now  make  the  announcement  that  no  requests  for  unani- 
mous consent  from  that  side  of  the  aisle,  unless  it  be  to  adjourn  or  to  take 
a  recess  —  in  which  two  cases  I  believe  it  is  not  from  a  parliamentary 
standpoint  necessary  to  have  unanimous  consent  —  will  not  be  granted 
during  the  balance  of  this  session  until  the  majority  shows  that  it  is  alive 
to  the  demands  of  the  country  sufficiently  to  report  for  consideration  in 
this  House,  or  to  give  me  satisfactory  assurance  that  they  will  report  for 
consideration,  the  following  bills: 

First,  an  employers'  liability  bill.  [Applause  on  the  Democratic  side.] 
You  have  been  wasting  too  much  time  over  it.  You  have  been  permit- 
ting your  Judiciary  Committee  to  have  hearing  upon  hearing, 'and  you 
have  been  using  that  bill  merely  as  a  buffer  in  order  to  prevent  hearing 
upon  other  essential  legislation  before  that  committee,  which  legislation 
you  hope  to  evade. 

Second,  I  shall  refuse  unanimous  consent  until  you  report  to  this  House 
for  its  consideration  some  publicity  of  campaign  contributions  bill  [ap- 
plause on  the  Democratic  side],  whether  it  be  the  bill  offered  by  the  gen- 
tleman from  Missouri  [Mr.  Rucker]  or  some  other  bill.  I  care  not  whose 
name  is  attached  to  it,  Republican  or  Democrat. 

Third,  I  shall  refuse  unanimous  consent  for  any  request  upon  that  side 
of  the  Chamber  until  the  Ways  and  Means  Committee  of  this  House, 
in  response  to  the  overwhelming  demand  of  the  entire  newspaper  and 
magazine  fraternity  of  this  country,  Republican  as  well  as  Democrat, 
shall  bring  to  the  consideration  of  this  House  a  bill  for  free  wood  pulp 
and  free  print  paper.  [Applause  on  the  Democratic  side.] 

Fourth,  I  shall  make  the  same  declination  until  the  Clayton  bill,  now 
pending  before  the  Judiciary  Committee,  or  some  other  bill  embodying 
like  provisions,  shall  have  been  reported  out  of  that  committee  for  the 
consideration  of  this  House.  What  the  Clayton  bill  does  is  this :  It  pre- 
vents mere  ex  parte  and  temporary  injunctions,  where  only  one  side  has 
been  heard  from,  acting  as  a  supersedeas  of  a  law  passed  by  a  sovereign 
State. 

I  do  not  deny  the  right,  upon  final  hearing  of  the  injunction  when  it  is 
made  permanent,  to  set  aside  a  State  law,  if  in  the  opinion  of  a  Federal 
court  it  violates  the  Constitution  of  the  United  States,  but  I  do  deny  the 


ORGANIZATION   AND    RULES    OF   THE  HOUSE     273 

right,  upon  a  mere  ex  parte  hearing  by  means  of  a  temporary  injunction 
without  hearing  the  State's  side  at  all,  of  a  subordinate  court  of  the  United 
States  to  sit  in  judgment  on  the  constitutionality  of  the  legislation  of  a 
sovereign  State.  [Applause  on  the  Democratic  side.]  I  am  reinforced  in 
that  opinion  by  the  fact  that  under  the  original  judicial  act  the  courts 
had  no  such  power,  and  for  years  and  years  afterwards  had  no  such 
power,  and  could  not  issue  an  injunction  until  they  had  heard  both  sides, 
with  reasonable  notice  to  both  sides.  Mr.  Chairman,  in  order  that  there 
may  be  no  misunderstanding  about  that,  and  how  far  I  am  going,  I  desire 
to  read  this  Clayton  bill,  though  I  do  not  insist  upon  this  particular  bill. 
Bring  in  a  bill  in  the  name  of  the  chairman  of  the  committee;  bring  in  a 
bill  in  the  name  of  a  Republican,  claim  the  credit  for  it,  go  before  the 
country  and  get  the  credit  for  it  —  you  have  a  right  to  do  it ;  that  I  ad- 
mit, and  I  would  be  glad  to  see  you  do  it,  for  I  am  never  better  satisfied 
than  at  the  unusual  spectacle  of  the  Republican  party  serving  the  country. 
[Laughter  and  applause  on  the  Democratic  side.] 

Thomas  Jefferson  said  we  ought  to  preserve  the  rights  of  the  States 
as  the  best  security  for  individual  liberty  and  local  self-government.  He 
also  stated  that  we  ought  to  guard  with  equal  care  the  delegated  powers 
of  the  Federal  Government  as  our  only  safeguard  for  national  independ- 
ence and  national  peace  and  progress.  I  would  not  take  from  the  Federal 
Government  one  of  the  powers  that  have  been  delegated  to  it.  I  would 
not  for  a  moment  join  in  an  attack  upon  the  courts  of  the  United  States 
for  declaring  a  State  law  or  a  Federal  law  unconstitutional  when  in  their 
honest  opinion  they  deem  it  to  be  so,  but  I  do  say  that  it  is  as  little  as  any 
man  who  loves  his  State  and  believes  in  local  self-government  can  de- 
mand to  ask  that  no  mere  subordinate  Federal  court  should  exercise  this 
newly  derived  power  to  set  aside  an  act  of  a  State  upon  a  mere  ex  parte 
hearing  from  the  attorney  and  the  witnesses  of  a  railroad  corporation  or 
of  anybody  else,  much  less  to  forbid  a  State  to  be  heard  in  its  own  defense. 
[Applause  on  the  Democratic  side.]  Now,  Mr.  Chairman,  if  after  some 
time  I  do  not  notice  signs  of  amendment  on  that  side  of  the  Chamber  and 
a  disposition  to  do  something  —  to  quit  this  policy  of  passivity  and  mere 
negation  and  "  standpatism "  —  if  I  do  not  note  some  disposition  to 
awake  to  the  idea  that  you  are  representatives  of  the  American  people 
and  ought  to  be  doing  something  in  their  interests,  then  I  shall  use  about 
the  only  other  power  that  the  minority  has,  and  that  is  to  call  for  a  yea- 
and-nay  vote  upon  every  affirmative  proposition,  however  insignificant, 
presented  to  this  House  for  passage.  [Applause  on  the  Democratic  side.] 


REPORT    OF   A   SPECIAL   RULE,    APRIL  4,   1908 

MR.  DALZELL.    Mr.  Speaker,  I  submit  the  following  privileged  report 
from  the  Committee  on  Rules. 

18 


274  AMERICAN   FEDERAL   GOVERNMENT 

The  SPEAKER.    The  gentleman  from  Pennsylvania  submits  a  report 
from  the  Committee  on  Rules,  which  the  Clerk  will  report. 
The  Clerk  read  as  follows : 

Resolved,  That  immediately  upon  the  adoption  of  this  rule,  and  at  any  time 
thereafter  during  the  remainder  of  this  session,  it  shall  be  in  order  to  take  from 
the  Speaker's  table  any  general  appropriation  bill  returned  with  Senate  amend- 
ments, and  such  amendments  having  been  read,  the  question  shall  be  at  once 
taken  without  debate  or  intervening  motion  of  the  following  question:  "Will 
the  House  disagree  to  said  amendments  en  bloc  and  ask  a  conference  with  the 
Senate?"  And  if  this  motion  shall  be  decided  in  the  affirmative,  the  Speaker 
shall  at  once  appoint  the  conferees,  without  the  intervention  of  any  motion.  If 
the  House  shall  decide  said  motion  in  the  negative,  the  effect  of  said  vote  shall 
be  to  agree  to  the  said  amendments. 

And  further,  for  the  remainder  of  this  session  the  motion  to  take  a  recess 
shall  be  a  privileged  motion,  taking  precedence  of  the  motion  to  adjourn,  and 
shall  be  decided  without  debate  or  amendment. 

And  further,  during  the  remainder  of  this  session,  it  shall  be  in  order  to  close 
debate  by  motion  in  the  House  before  going  into  Committee  of  the  Whole, 
which  motion  shall  not  be  subject  to  either  amendment  or  debate. 

[Applause  on  the  Republican  side.] 

Mr.  SULZER.  Mr.  Speaker,  would  it  not  be  well  to  add  to  that,  "That 
hereafter  the  Democrats  shall  have  nothing  more  to  say?"  [Laughter.] 

Mr.  DALZELL.  Mr.  Speaker,  the  purpose  of  this  rule,  like  the  purpose 
of  the  rule  that  was  introduced  yesterday,  is  to  expedite  the  public 
business. 

Mr.  WILLIAMS.    Mr.  Speaker 

The  SPEAKER.  Does  the  gentleman  from  Pennsylvania  yield  to  the 
gentleman  from  Mississippi? 

Mr.  DALZELL.    Yes. 

Mr.  WILLIAMS.  I  wish  to  ask  the  gentleman  a  question.  I  wish  to 
ask,  before  we  proceed,  whether  the  minority  members  of  the  Committee 
on  Rules  will  be  accorded  the  usual  twenty  minutes  ? 

Mr.  DALZELL.    They  will  not. 

Mr.  WILLIAMS.  They  will  not!  I  just  wanted  the  House  and  the 
country  to  know  that  fact  before  we  start  this  debate. 

Mr.  DALZELL.  As  I  say,  the  purpose  of  the  rule  is  to  expedite  the  pub- 
lic business  and  release  the  House  from  the  grasp  of  this  idiotic  filibuster 
inaugurated  by  the  gentleman  from  Mississippi  [applause  on  the  Repub- 
lican side];  to  prevent  the  waste  of  public  time  at  the  public  expense 
[laughter  on  the  Democratic  side  and  applause  on  the  Republican  side] ; 
to  enable  the  majority  to  consider  and  enact  into  law  the  great  supply 
bills  upon  which  the  existence  of  the  Government  depends.  [Laughter 
on  the  Democratic  side  and  applause  on  the  Republican  side.] 

Mr.  Speaker,  let  me  explain  at  some  length,  perhaps,  this  rule. 

Mr.  SULZER.   It  needs  explanation. 


ORGANIZATION   AND    RULES    OF   THE   HOUSE     275 

Mr.  DALZELL.  I  do  not  think  I  could  make  an  explanation  that  would 
reach  the  gentleman  from  New  York.  [Laughter  on  the  Republican 
side.] 

Mr.  SULZER.    Not  on  anything  like  this. 

Mr/  DALZELL.  When  the  House  is  acting  in  the  usual  orderly  and 
decent  way  in  the  conduct  of  its  business,  when  a  general  appropriation 
bill  with  Senate  amendments  comes  over  to  the  House  it  is  taken  from 
the  Speaker's  table  by  unanimous  consent,  and  the  Senate  amendments 
are  concurred  in  or  disagreed  to.  This  is  the  ordinary  courteous  way  of 
doing  business  between  the  two  Houses.  That  is  the  orderly  method 
whereby  the  minds  of  the  two  Houses  are  brought  together  and  law  is 
enacted.  But  if  unanimous  consent  be  not  granted,  if  the  minority  of 
the  House  be  indulging  in  useless  obstruction  of  public  business  in  a  dis- 
graceful filibuster,  then  the  bill  must  in  the  natural  course  go  to  the  Com- 
mittee on  Appropriations.  When  it  comes  back  from  the  Committee  on 
Appropriations  a  motion  to  go  into  Committee  of  the  Whole  for  the  con- 
sideration of  its  report  is  subject  to  the  statesmanlike  demand  of  the  yeas 
and  nays  on  the  motion.  Nay,  more.  There  may  be  possibly  three  de- 
mands for  the  yeas  and  nays  on  the  motion  to  go  into  Committee  of  the 
Whole,  on  the  previous  question,  and  possibly  on  another  motion.  After 
the  bill  has  been  treated  in  the  Committee  of  the  Whole  and  the  usual 
statesmanlike  call  for  tellers  and  other  dilatory  proceedings  have  been 
indulged  in,  it  comes  back  into  the  House  and  it  may  be  subject  to  hun- 
dreds of  calls  of  the  roll  if  there  be  so  many  Senate  amendments,  and  the 
call  of  the  roll  on  the  adoption  of  the  previous  question,  a  call  of  the  roll 
on  the  adoption  of  the  report  of  the  Committee  of  the  Whole,  and  so  it 
will  be  observed  that  it  is  in  the  power  of  the  minority  in  the  exercise  of 
an  abused  constitutional  right  to  obstruct  the  business  of  the  House, 
waste  the  people's  time  and  the  people's  money,  and  all  for  no  purpose 
save  delay.  [Applause  on  the  Republican  side.] 

Another  provision  of  this  rule  is  that  from  this  time  forward  a  motion 
to  take  a  recess  shall  be  a  privileged  motion  and  take  precedence  of  the 
motion  to  adjourn,  and  not  be  subject  either  to  amendment  or  debate. 
In  this  way  it  will  be  in  the  power  of  the  majority  to  cut  off  many  of  these 
useless  roll  calls.  A  further  provision  is  that  it  shall  be  in  order  to  close 
debate  by  motion  in  the  House  before  going  into  Committee  of  the  Whole, 
which,  I  think,  outside  of  this  rule,  would  be  a  sensible  rule  at  all  times. 

Now,  Mr.  Speaker,  the  gentleman  from  Mississippi  [Mr.  Williams] 
says  that  he  is  not  indulging  in  any  filibuster.  Does  he  believe  that  he 
can  fool  the  people  of  this  country  by  any  such  statement  as  that  ? 

Does  he  believe  that  the  people  in  this  country  can  be  persuaded  that 
any  principle  is  involved  in  a  demand  for  the  yeas  and  nays  on  the  ap- 
proval of  the  Journal  and  then  voting  for  the  approval  of  the  Journal? 
Can  any  man  conceive  of  a  more  asinine  performance  than  that?  [Ap- 
plause on  the  Republican  side.]  Does  he  believe  that  he  can  fool  the 


276  AMERICAN   FEDERAL   GOVERNMENT 

people  of  this  country ;  that  there  is  any  principle  involved  in  a  demand 
for  the  yeas  and  nays  on  a  motion  to  go  into  Committee  of  the  Whole  to 
consider  the  passing  of  the  great'supply  bills  on  which  the  existence  of  the 
Government  depends  ?  Does  he  believe  that  he  can  persuade  the  people 
of  this  country  that  there  is  any  principle  involved  in  a  call  for  the 
yeas  and  nays  on  a  motion  to  adjourn  at  half  past  nine  in  the  evening  ? 

The  gentleman  from  New  York  is  complained  of  because  he  spoke  of 
this  performance  as  puerile.  Nay,  it  is  childish  and  a  disgrace  to  grown 
men  of  full  stature.  [Applause  on  the  Republican  side.]  What  a  sweet 
little  story  we  heard  yesterday  about  old  black  Lucy  and  little  Johnny  at 
Grand  Junction  running  away  from  a  Chinese  gong !  I  could  not  help 
thinking  of  what  a  wave  of  pride  would  have  passed  over  that  old  black 
Lucy's  face  could  she  have  foreseen  little  Johnny  rising  to  the  heights  of 
a  sublime  statesmanship  in  demanding  the  yeas  and  nays  on  a  motion  to 
adjourn  in  the  House  of  Representatives.  [Laughter  on  the  Republican 
side.] 

After  playing  all  day,  little  Johnny  is  unwilling  to  take  his  dolls  and 
dishes  and  go  home  without  the  exhibition  of  this  last  piece  of  statesman- 
ship in  calling  for  the  yeas  and  nays  on  a  motion  to  adjourn. 

Mr.  Speaker,  I  now  move  the  previous  question. 

Mr.  SULZER.  Mr.  Speaker,  will  the  gentleman  yield  to  me  for  two 
minutes  ? 

Mr.  DALZELL.  No ;  I  will  not  yield  to  the  gentleman  for  two  seconds. 
[Prolonged  laughter  and  applause  on  the  Republican  side.] 

Mr.  SULZER.    That  is  because  the  gentleman  does  not  dare  to  do  it. 

The  SPEAKER.    The  question  is  on  ordering  the  previous  question. 


DISCUSSION   ON    THE    BRIDGE  BILL,    MAY   13,    1908 

MR.  TOWNSEND.  Mr.  Speaker,  this  is  what  is  known  as  the  "  omnibus 
bridge  bill."  It  is  a  bill  which  contains  all  of  the  bridge  bills  which  have 
been  sent  to  the  Committee  on  Interstate  and  Foreign  Commerce  and 
which  have  received  a  favorable  report  from  that  committee  and  have 
been  indorsed  by  the  Secretary  of  War.  All  are  to  be  constructed  under 
the  provisions  of  the  law  known  as  the  "general  bridge  law  of  1906." 
I  do  not  understand  that  there  is  any  objection  to  the  bill,  and  therefore, 
believing  as  I  do  that  everybody  understands  it,  I  will  reserve  the  balance 
of  my  time. 

Mr.  ADAMSON.  Mr.  Speaker,  the  bill  was  put  in  this  shape  in  order 
to  insure  consideration  of  all  projects  for  bridges  which  were  pending  be- 
fore the  Committee  on  Interstate  and  Foreign  Commerce.  Exigencies 
in  the  House  are  such,  at  this  time,  that  it  was  necessary  to  resort  to  this 
device  in  order  that  Members  might  secure  all  their  projects.  Therefore 
we  took  a  bridge  bill  which  came  from  the  Senate  and  attached  to  it  by 


ORGANIZATION   AND    RULES    OF   THE   HOUSE     277 

amendment  every  single  meritorious  bridge  proposition  that  was  pending 
before  the  committee,  thus  forming  this  omnibus  bill.  It  is  a  good  bill  in 
its  present  shape,  and  it  is  a  necessary  to  pass  it  in  this  way  in  order  to 
secure  all  these  bridges.  I  request  gentlemen  on  this  side  not  to  regard 
its  origin  on  the  other  side  as  a  badge  of  suspicion,  but  to  accept  it  as 
being  all  right,  and,  notwithstanding  the  circumstances,  to  vote  for  the 
bill.  [Applause.]  I  have  no  request,  Mr.  Speaker,  for  further  time  — 

Mr.  WILLIAMS.    I  will  take  a  minute  or  two. 

Mr.  ADAMSON.  Mr.  Speaker,  I  yield  to  the  gentleman  from  Mississippi 
such  time  as  he  wishes  to  use. 

Mr.  WILLIAMS.  Mr.  Speaker,  if  I  had  been  wanting  a  mathematical 
demonstration  of  the  fact  that  I  had  been  engaged  in  saving  the  public 
time  and  expediting  the  public  business,  this  bill  would  have  furnished 
me  with  it.  It  contains  twenty-three  bridges.  Ordinarily  these  twenty- 
three  bridges  would  have  come  up  each  as  a  separate  bill ;  something  like 
ten  minutes  would  have  transpired  in  asking  unanimous  consent  and  in 
inquiries  as  to  whether  the  bill  conformed  with  the  provisions  of  the 
general  law,  as  to  whether  it  was  unanimously  reported  by  the  committee, 
and  in  the  gentleman  offering  it  explaining  why  that  particular  bridge 
was  requisite.  If  ten  minutes  had  not  been  required,  five  would  have 
been  required  on  each.  Twenty-three  times  ten  is  two  hundred  and 
thirty  minutes.  Twenty-three  times  five  is  a  hundred  and  fifteen 
minutes. 

Now,  we  are  going  to  get  twenty-three  bridge  bills  through  in  forty 
minutes  of  debate,  if  all  the  time  upon  that  side  is  consumed  —  and  I 
take  it  for  granted  that  it  will  not  be  —  and  if  all  the  time  on  this  side  be 
consumed  —  and  I  take  it  for  granted  that  it  will  not  be  —  plus  thirty- 
five  minutes  of  time  necessary  to  call  the  roll,  making  a  total  of  seventy- 
five  minutes,  a  saving,  Mr.  Speaker,  of  forty  minutes  of  the  people's  time 
on  one  calculation  and  a  hundred  and  fifty  minutes  of  the  people's  time 
on  another  calculation.  [Laughter.]  Now,  Mr.  Speaker,  I  hope  I  will 
hear  no  more  from  the  leader  of  the  majority  about  our  wasting  the  pub- 
lic time  when  we  are  expediting  it  in  this  remarkably  expeditious  man- 
ner. Not  only  that,  but  we  have  accomplished  the  same  purpose  in 
connection  with  pensions.  We  used  to  stand  here  and  pass  one  little  pen- 
sion bill  at  a  time,  and  now  under  this  new  regime  you  put  them  all  in 
one,  and  we  pass  them  after  forty  minutes'  debate  and  thirty-five  min- 
utes of  roll  call.  There  never  has  been  anything  that  hurried  up  public 
business  equal  to  the  mustard-plaster  policy  that  has  been  applied  to 
the  Republican  body  politic  by  the  Democratic  party  during  this 
Congress. 

Mr.  GILLETT.    Will  the  gentleman  from  Mississippi  permit  a  question  ? 

Mr.  WILLIAMS.  If  the  gentleman  wants  to  ask  a  question  germane  to 
the  bill  which  I  am  discussing,  I  will  be  glad  to  answer. 

Mr.  GILLETT.    It  is  germane  to  your  argument. 


278  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  WILLIAMS.    Of  course  the  argument  is  germane  to  the  bill. 

Mr.  GILLETT.  I  want  to  ask  the  gentleman  if  he  thinks  this  is  a  good 
way  to  legislate,  to  combine  a  great  number  of  bills,  so  that  if  one  vicious 
bill  is  there,  you  have  got  to  vote  down  all  the  good  bills  in  order  to  defeat 
that? 

Mr.  WILLIAMS.  Mr.  Speaker,  I  have  been  admonished  by  the  leader 
of  the  Republican  party  on  this  floor  and  by  the  Speaker's  rules  deputy 
from  Pennsylvania  that  the  Democratic  Representatives  are  not  Mem- 
bers of  the  House  except  nominally,  and  that  the  Republican  party  is 
"  responsible  for  all  omissions  and  commissions."  If  this  be  a  bad  method 
of  legislation,  as  the  gentleman  from  Massachusetts  would  infer,  then  by 
the  confession  of  the  majority  leader  this  is  a  Republican  bad  way  of 
doing  business.  I  am  not  at  all  responsible  for  it.  The  galled  jade  can 
wince,  my  withers  are  unwrung.  Now,  this  morning,  Mr.  Speaker,  the 
gentleman  from  New  York  [Mr.  Payne]  referred  to  my  calling  the  roll 
upon  motions  to  take  a  recess  and  upon  motions  to  adjourn,  and  said  the 
framers  of  the  Constitution  never  had  an  idea  that  a  man  like  that  would 
be  here ! 

When  I  first  came  to  Washington  as  a  Representative  it  was  as  a  Mem- 
ber of  the  Fifty- third  Congress,  and  the  great  Thomas  B.  Reed  was  minor- 
ity leader  at  that  time.  He  organized  a  real  filibuster,  not  a  movement 
like  this.  This  movement  is  for  the  purpose  of  coercing  the  majority  into 
legislating.  But  he  organized  a  real  filibuster  —  that  is,  to  prevent  the 
majority  from  doing  anything,  even  routine  business.  And  what  do  you 
reckon  was  the  reason  that  he  gave  to  the  country  for  his  filibuster  ?  It 
was  that  he  was  going  to  force  the  Democratic  majority  to  manacle  the 
Republican  minority,  in  order  that  he  might  be  justified  in  history  for 
having  manacled  the  Democratic  minority  when  he  was  Speaker !  And 
day  after  day  the  roll  was  called  upon  the  adoption  of  the  Journal,  upon 
every  motion  that  was  or  could  be  made;  unanimous  consent  was  re- 
fused upon  everything ;  the  point  of  no  quorum  was  made  on  every  occa- 
sion. I  just  happened  this  morning  to  be  reminiscing  a  bit,  and,  with  the 
help  of  the  gentleman  from  New  York  [Mr.  Fitzgerald],  I  came  on  the 
proceedings  of  July  8,  1892,  in  the  Congressional  Record,  page  5920,  a 
yet  earlier  period  than  I  have  just  referred  to,  and  at  that  time  the  distin- 
guished gentleman  from  New  York  [Mr.  Payne]  was  not  the  Republican 
leader,  but  he  was  a  distinguished  man  in  the  councils  of  the  party  and 
was  doing  their  agreed  work. 

Upon  that  occasion  a  bill  for  the  government  of  Utah  was  brought  up, 
providing  for  the  manner  of  electing  delegates,  and  all  that.  When  the 
bill  was  finally  passed  it  was  passed  with  only  one  vote  in  opposition. 
There  sprang  to  his  feet  upon  that  occasion,  when  the  motion  was  made 
by  the  gentleman  from  Tennessee  [Mr.  Washington]  to  suspend  the  rules 
and  pass  the  bill,  the  gentleman  from  New  York  [Mr.  Payne],  and  I  find 
recorded : 


ORGANIZATION   AND    RULES    OF   THE   HOUSE     279 

Mr.  PAYNE.    I  move  that  the  House  do  now  adjourn. 

The  SPEAKER.  The  gentleman  from  Tennessee  had  been  recognized  to 
make  a  motion  to  suspend  the  rules  and  pass  the  bill  that  he  has  indicated. 

Mr.  PAYNE.  I  supposed  that  the  gentleman  had  made  the  motion  and  it 
was  pending. 

Showing  that  he  was  not  only  frequent,  but  premature.  Then  the  bill 
was  read.  Then  the  gentleman  from  New  York  [Mr.  Payne]  said: 

Mr.  Speaker,  I  make  the  motion  that  the  House  do  now  adjourn. 

Who  has  heard  me  move  "that  the  House  do  now  adjourn?"  Who 
has  heard  me  make  the  point  of  no  quorum?  At  that  time  Mr.  Payne 
and  other  Republicans  made  it  all  the  time,  and  the  Republican  leader 
announced  that  the  "Democrats  must  keep  a  quorum  here"  themselves, 
as  the  Republicans  were  not  going  to  help  them  do  so. 

We  go  down  in  this  pleasant  history  and  find  after  the  gentleman  had 
made  his  motion  to  adjourn,  and  that  motion  had  been  defeated,  the  gen- 
tleman from  New  York  [Mr.  Payne]  said: 

I  ask  for  a  division. 

The  House  divided,  and  there  were —  ayes  31,  noes  134. 

Mark  the  paucity  of  ayes !  The  gentleman  said  that  he  did  not  under- 
stand that  the  forefathers  had  "anticipated"  me  or  anybody  that  would 
come  to  the  House  and  call  for  the  yeas  and  nays,  and  move  divisions  and 
tellers,  except  when  they  really  did  want  them  and  had  a  large  crowd  of 
people  behind  them  ready  to  enforce  legislation  or  negation  of  legislation. 
But  revenons  a  nos  moutons.  After  that  announcement  was  made,  of  31 
to  134,  the  gentleman  from  New  York  [Mr.  Payne],  in  his  desire  to  accel- 
erate the  public  business,  arose  and  said : 

I  ask  for  tellers. 

Tellers  were  refused,  only  31  voting  in  favor  thereof. 

Mark  once  more  the  noble  thirty-one  only !  But  the  gentleman  from 
New  York,  who  apparently  also  was  not  "anticipated  by  the  forefathers," 
upon  a  proposition  where  he  could  not  even  get  tellers,  much  less  the  yeas 
and  nays  (and  who  has  heard  of  my  failing  to  get  the  yeas  and  nays  when 
I  asked  for  them  this  year?),  the  gentleman  from  New  York,  in  those  his- 
toric days,  rose  and  said : 

I  ask  for  tellers. 

They  were  refused  —  not  a  sufficient  number. 
Then  he  said: 

I  demand  the  yeas  and  nays. 


28o  AMERICAN  FEDERAL   GOVERNMENT 

Great  Hercules !  Think  of  it !  The  yeas  and  nays  !  The  question  was 
ordered  on  the  yeas  and  nays  and  they  were  refused  —  not  a  sufficient 
number. 

Then  the  gentleman  from  New  York  [Mr.  Payne]  arose  —  a  much 
more  replete  and  complete  parliamentarian  than  I  —  and  I  find  recorded : 

Mr.  PAYNE.     I  demand  tellers  on  ordering  the  yeas  and  nays. 

Who  has  heard  me  demand  tellers  on  ordering  the  yeas  and  nays? 
and  tellers  were  ordered  on  the  question  of  ordering  the  yeas  and  nays, 
because  there  was  a  fair  Speaker  in  the  chair.  And  then : 

The  House  divided,  and  the  tellers  reported —  ayes  34,  noes  158. 

Then  the  gentleman  from  New  York,  in  his  great  desire  to  accelerate 
and  expedite  public  business  and  to  prove  that  the  forefathers  had  fore- 
seen him  as  an  expediter  and  accelerator,  said: 

I  demand  a  second  on  the  motion  to  suspend  the  rules. 

Mr.  Washington  said: 

I  ask  unanimous  consent  that  a  second  may  be  considered  as  ordered. 

And  then  objection  was  made. 

Then  the  Speaker  appointed  tellers,  the  gentleman  from  New  York 
being  one  of  the  tellers.  Then  the  gentleman  from  New  York  said : 

I  ask  that  the  gentleman  from  Iowa  [Mr.  Perkins]  be  substituted. 

[Laughter.] 

Why,  he  was  so  tired  "expediting  public  business"  that  he  had  to  get 
somebody  else  substituted  for  him  to  count  as  a  teller.  Who  ever  heard 
of  my  being  tired  of  expediting  public  business  to  the  point  of  physical 
exhaustion  ? 

Mr.  ADAMSON.  I  would  like  to  know  if  that  interesting  record  dis- 
closes anything  that  was  ever  said  about  dilatory? 

Mr.  WILLIAMS.  It  does  not  disclose  that  anything  was  said  about 
" dilatory."  But,  Mr.  Speaker,  it  is  an  old  maxim  that  actions  speak 
louder  than  words.  Then  I  found  that  when  matter  was  finally  voted 
upon 

Mr.  AMES.    Will  the  gentleman  allow  me? 

Mr.  WILLIAMS.  I  want  to  finish  this  branch  of  this  very  interesting 
story.  I  find  there  was  one  vote  cast  in  the  negative,  and  I  presume,  out 
of  charity,  it  was  the  vote  of  the  gentleman  from  New  York.  [Laughter 
and  applause.]  Now,  I  yield  to  the  gentleman  from  Massachusetts. 

Mr.  AMES.    Is  there  not  a  material  difference  between  the  position  of 


ORGANIZATION  AND    RULES    OF   THE   HOUSE     281 

the  gentleman  from  New  York  at  that  time  and  the  position  of  the  gentle- 
man from  Mississippi  at  this  time? 

Mr.  WILLIAMS.  There  was;  thank  God  for  the  difference  !  I  will  tell 
you  what  the  difference  was. 

Mr.  AMES.  Will  you  let  me  finish  my  question  ?  Is  there  anything  in 
the  Record  you  allude  to  there  which  indicates  that  the  gentleman  from 
New  York  claimed  that  he  was  expediting  public  business  ? 

Mr.  WILLIAMS.  Oh,  now,  Mr.  Speaker,  why  it  was  not  necessary  for 
him  to  claim  it  then ;  he  has  claimed  it,  as  his  constant  and  chronic  habit, 
only  this  morning ;  and  it  is  the  modern  instance  and  not  the  ancient  saw 
that  has  aroused  my  discursiveness.  All  this  contention  now  is  to  show 
that  nobody  should  ever  do  these  things  except  when  he  wants  to  defeat 
a  particular  bill. 

The  gentleman  says  there  is  a  difference.  Yes ;  there  is  a  difference. 
I  am  endeavoring  and  trying  to  rivet  the  attention  of  the  country  on  the 
fact  that  I  want  to  make  the  Republican  majority  pass  legislation  that  not 
only  we,  but  the  majority  of  the  American  people  and  their  own  Presi- 
dent —  accidentally  right  —  wants.  [Laughter  and  loud  applause  on 
the  Democratic  side.]  What  was  he  engaged  in?  What  was  the  great 
Thomas  B.  Reed  engaged  in  during  the  Fifty-second  and  Fifty-third 
Congresses,  followed  by  his  lieutenants,  the  gentleman  from  New  York 
[Mr.  Payne]  and  the  gentleman  from  Pennsylvania  [Mr.  Dalzell]  ?  Oh, 
a  puny  effort,  a  spiteful  effort,  with  a  senseless  purpose  —  to  make  the 
majority  manacle  the  minority,  when  he  himself  was  in  the  minority. 
[Applause  on  the  Democratic  side.]  And  he  succeeded  to  a  very  large 
extent. 

He  had,  as  Speaker,  applied  the  so-called  "Reed  rules,"  throttling  de- 
bate, and  since  that  moment  this  House  has  never  been  a  deliberative 
assembly.  He  announced  to  the  Democrats,  when  they  came  into  power, 
substantially  this :  "  In  order  to  prove  to  you  that  much  of  your  criticism 
of  me  for  throttling  debate  and  preventing  deliberation  and  manacling 
a  minority  are  unjust,  I  am  going  to  prove  to  the  country  that  you  can 
not  do  business  without  manacling  us,  and  I  am  going  to  refuse  all  unani- 
mous consents ;  I  am  going  to  call  the  roll  whenever  I  can  find  occasion ; 
I  am  going  to  make  the  point  of  no  quorum  every  time  I  can ;  I  am  going 
to  move  to  adjourn  whenever  the  rules  will  allow  it ;  I  am  going  to  move 
to  take  a  recess  whenever  the  rules  will  allow,"  and  so  forth,  ad  infini- 
tum,  on  the  adoption  of  the  Journal,  and  so  forth,  and  he  did  it  all,  until 
they  were  forced  in  a  Democratic  House  to  adopt  in  part,  in  part  only  the 
gag  rule  for  the  origination  of  which  [laughter  and  loud  applause  on  the 
Republican  side]  the  Republican  party  still  applauds  itself,  strange  to 
say.  [Laughter  and  applause  on  the  Democratic  side.] 

Why,  Mr.  Speaker,  into  what  contempt  has  the  American  House  of 
Representatives  sunk !  The  Constitution  speaks  of  three  independent, 
coordinate,  separate  branches,  and  then  refers  to  the  executive,  the  judi- 


282  AMERICAN  FEDERAL  GOVERNMENT 

ciary,  and  the  legislative.  Do  you  know  what  the  three  separate,  inde- 
pendent, and  coordinate  branches  are  now  ?  The  executive,  the  judiciary, 
and  the  Senate  of  the  United  States.  [Applause  on  the  Democratic  side.] 
What  do  you  amount  to  over  there,  either  one  of  you  Republicans,  indi- 
vidually ? ,  [Laughter.] 

Mr.  GREENE.    What  do  you  amount  to? 

Mr.  WILLIAMS.  What  do  I  amount  to?  I  confess  I  amount  to  noth- 
ing, politically  and  personally,  but  then,  I  am  a  member  of  the  minority 
party ;  but  what  do  you  individually  amount  to,  any  one  of  you,  in  the 
matter  of  legislation?  [Applause  on  the  Democratic  side.] 

Why,  you  have  got  to  the  point  of  actually  being  afraid  to  sign  a  re- 
spectful request  to  your  own  Speaker  to  recognize  somebody  to  ask  con- 
sideration of  legislation  that  you  yourselves  are  in  favor  of.  Deny  it  if 
you  dare,  and  I  will  prove  it  on  you.  You  dare  not  indite  a  note  to  him  of 
the  most  respectful  and  polite  character  without  having  previously  ob- 
tained his  consent.  [Applause  on  the  Democratic  side.]  You  have  got  to 
the  point  where  you  introduce  bills  to  do  things ;  you  make  speeches  in 
favor  of  doing  them,  and  you  dare  not  address  a  billet  doux  to  the  Speaker 
asking  him  for  a  chance  to  vote  on  them.  You  dare  not  lovingly  write : 

DEAR  MR.  SPEAKER:  I  most  respectfully  and  humbly  and  considerately 
request  that  you  will  permit  consideration  by  the  House  of  H.  R. — ,  intro- 
duced by  me. 

You  are  going  to  the  country  that  way,  too,  are  you  not?  Why,  Mr. 
Speaker,  somebody  stepped  across  the  aisle  this  morning  and  said  I  had 
made  a  humorous  speech.  I  have  not  made  any  humorous  speech.  My 
speeches  have  all  had  a  serious  purpose.  The  only  humorous  thing  about 
these  little  lectures  that  I  have  been  delivering  is  the  perplexed  gravity 
with  which  they  are  received  by  the  gentleman  from  New  York  [Mr. 
Payne].  [Laughter.]  The  only  man  who  has  been  physician  enough  to 
successfully  diagnose  your  case  is  the  gentleman  from  Washington  [Mr. 
Cushman],  when  he  said  that  we  were  giving  you  "  mustard-seed  poli- 
tics." We  are  putting  a  blister  upon  you  every  day  that  brings  a  boil 
unless  you  assert  your  individual  independence  as  Representatives  suffi- 
ciently at  least  to  have  the  courage  to  make  a  request  of  your  own  Speaker 
without  previously  getting  his  consent  .to  make  the  request ;  then  have 
the  modesty  and  sense  of  eternal  fitness  to  resign  as  Members  of  the 
House.  [Applause  on  the  Democratic  side.] 

The  gentleman  from  Washington  has  diagnosed  it  right.  It  is  mustard- 
plaster  politics,  and  it  is  not  bringing  any  blisters  over  here.  The  blisters 
are  over  there.  You  say  it  is  puerile;  you  say  it  is  silly;  you  say  that 
there  is  no  sense  in  it ;  you  say  it  is  childish ;  you  say  it  is  vaudeville. 
Well,  then,  why  do  you  not  laugh.  What  makes  you  so  infernally  serious 
about  it?  [Laughter  on  the  Democratic  side.]  And  why  do  you  not  do 


ORGANIZATION  AND    RULES    OF   THE   HOUSE     283 

something  ?  You  are  going  to  the  country  after  a  while  and  tell  them  that 
I  "would  not  let  you  pass  important  and  popular  measures,"  when  I  am 
standing  here  every  day  pleading  and  praying  with  you  that  you  will  legis- 
late. Why,  I  would  pray  literally  to  the  Higher  Power,  that  you  might  do 
something,  except  for  my  recollection  of  the  fact  that  the  Bible  says  that 
"the  prayer  of  the  righteous  man  availeth  much,"  and  I  am  afraid  that 
my  prayer  would  not,  because  I  can  not  class  myself  that  way.  But  just 
a  few  of  you  that  introduced  free  wood-pulp  bills  —  just  a  few  of  you  that 
introduced  campaign  contribution  publicity  bills,  get  up  a  few  little  notes 
and  send  them  in  to  the  Speaker;  our  petition  he  already  has.  Dare  you 
add  yours?  [Applause  on  the  Democratic  side.] 

The  SPEAKER  pro  tempore.  The  time  for  the  gentleman  from  Missis- 
sippi has  expired. 

Mr.  TOWNSEND.  Mr.  Speaker,  I  have  been  entertained  on  various 
occasions  by  the  endeavors  of  the  gentleman  from  Mississippi  to  apolo- 
gize for  the  filibustering  course  that  he  has  pursued  up  to  date.  He  never 
neglects  any  opportunity  of  trying  to  explain  himself,  and  I  do  not  blame 
him,  because  I  understand  some  of  the  trials  that  he  has  been  undergoing, 
brought  about  by  the  dissatisfaction  on  his  own  side,  at  the  senseless 
policy  which  he  has  pursued  in  this  filibuster.  [Applause  on  the  Repub- 
lican side.] 

He  ought  to  have  gone  further  in  his  mathematics  to-day,  when  he  was 
demonstrating  how  much  time  he  had  saved  to  the  House  by  bringing 
about  a  condition  which  he  himself  has  condemned  so  many  times  on  the 
floor,  viz.,  the  passage  of  legislation  without  giving  anyone  an  oppor- 
tunity to  express  himself  on  the  measure.  He  ought  to  have  gone  further 
and  shown  that  he  has  saved  this  House  from  the  Democratic  party,  as 
led  by  the  gentleman  from  Mississippi,  from  twenty-three  roll  calls  on 
this  bill,  which  would  have  aggregated  something  like  eight  hundred  and 
five  minutes,  or  eleven  hours  and  a  half.  He  would  have  imposed  upon 
the  House  for  eleven  and  one-half  hours  on  such  calls  could  he  have  had 
his  way  and  the  Republican  Rules  Committee  had  not  presented  the  rule 
for  the  purpose  of  allowing  us  to  do  business. 

Mr.  WILLIAMS.  Do  you  not  think  that  before  they  got  through  with 
those  roll  calls  they  would  have  brought  in  some  of  this  legislation  that 
you  and  I  want,  and  then  I  should  have  stopped  ? 

Mr.  TOWNSEND.  It  is  also  amusing  to  me,  Mr.  Speaker,  to  notice  the 
audacity  (I  think  perhaps  that  is  the  proper  word)  which  the  gentleman 
displays  on  every  occasion  when  he  states  what  he  and  his  party  are  pro- 
posing to  bring  to  the  attention  of  the  majority,  certain  measures  of  legis- 
lation, nearly  all  of  which,  all  the  sane  parts  of  which,  had  been  presented 
here  from  Republican  sources,  and  that  part  of  it  which  has  been  reached 
would  have  been  reached  in  the  orderly  procedure  of  the  business  of  the 
House. 

Now,  Mr.  Speaker,  there  have  been  times  when  I  have  become  im- 


284  AMERICAN   FEDERAL   GOVERNMENT 

patient  at  the  action  of  the  House  in  not  doing  things  which  to  me  seemed 
necessary. 

Yet  I  have  learned  since  I  have  been  a  member  of  this  House  that  all 
legislation  should  be  given  careful  and  most  considerate  attention.  I 
now  would  like  to  have  certain  measures  brought  up.  I  am  not  charging 
anyone  with  bad  faith  because  I  can  not  have  my  way  about  everything. 
But  I  submit,  Mr.  Speaker,  that  when  the  record  of  this  session  of  the 
Sixtieth  Congress  shall  have  been  completed,  the  'Republican  party  can 
go  before  the  country  with  the  statement  of  things  done  which  will  re- 
dound to  the  credit  of  the  majority  party  that  has  had  control  of  this 
Sixtieth  Congress.  [Applause  on  the  Republican  side.] 

I  wish  to  say  further,  Mr.  Speaker,  that  this  House  and  the  country 
is  not  going  to  be  deceived  by  the  statements  of  gentlemen  who  are  at 
this  time  advocating  legislation  which,  if  they  were  in  the  majority,  they 
would  not  dare  to  present.  [Applause  on  the  Republican  side.]  The 
country  should  be  thankful  sometimes  for  failure  of  Congress  to  pass 
certain  proposed  bills.  It  is  an  easy  thing  for  gentlemen  to  find  fault; 
it  is  an  easy  thing  for  gentlemen  not  charged  with  responsibility  to  criti- 
cise ;  it  is  quite  a  different  thing  to  take  charge  of  positive  legislation  and 
carry  it  to  completion. 

Mr.  SHERLEY.     Will  the  gentleman  yield? 

Mr.  TOWNSEND.  I  do  not  wish  to  yield,  because  I  do  not  wish  to 
carry  on  this  controversy  any  further. 

Mr.  SHERLEY.  Will  the  gentleman  enumerate  the  legislation  urged 
by  us  and  which  we  would  not  stand  for? 

Mr.  TOWNSEND.  I  will  take  this  time  to  say  that  you  will  have  an 
opportunity,  as  I  understand  it,  to-morrow  afternoon  to  present  certain 
amendments  to  the  currency  bill,  to  present  your  notions  of  what  you 
want  enacted  into  law,  and  I  want  to  see  you  do  it.  Instead  of  advocating 
your  opposition  and  saying,  "We  oppose  the  Republican  bill,"  present 
a  positive  scheme  that  you  are  willing  to  stand  for  and  go  before  the 
country  upon. 

Mr.  WILLIAMS.    Will  the  gentleman  permit  an  interruption  ? 

Mr.  TOWNSEND.  I  do  not  want  to  be  interrupted,  for  I  do  not  want 
to  enter  into  a  controversy  that  I  did  not  introduce  in  the  House.  This 
discussion  was  injected  not  by  any  desire  of  mine. 

I  had  not  expected  to  say  a  word,  but  I  would  suggest  to  the  gentle- 
man from  Mississippi  and  to  the  House  that  there  are  certain  methods 
of  reform,  certain  methods  for  expediting  business  which  would  expedite 
and  which  could  be  adopted.  One  of  them  is  the  policy  of  discussing 
the  questions  before  the  House,  instead  of  giving  gentlemen  an  opportun- 
ity to  exploit  themselves  before  the  country  on  every  possible  occasion. 
[Applause  on  the  Republican  side.] 

Mr.  WILLIAMS.  How  are  we  going  to  discuss  a  question  if  you  will 
not  let  it  come  before  the  House? 


ORGANIZATION   AND    RULES    OF   THE    HOUSE     285 

Mr.  TOWNSEND.  This  bill  is  before  the  House,  and  I  apologize  for 
occupying  any  of  the  attention  of  the  House  in  discussing  any  matter 
not  germane  to  it.  This  is  a  bill  which,  I  take  it,  everybody  is  going  to 
vote  for,  and  yet,  under  the  filibuster  inaugurated  by  the  gentleman 
from  Mississippi  and  persisted  in  by  him,  we  will  have  to  take  thirty-five 
minutes  to  pass  it,  and  I  call  for  a  vote. 


REMARKS    OF   REPRESENTATIVE   CLARK1 

[The  power  of  the  organization  in  the  House  in  controlling  legislative  action 
is  illustrated  in  a  humorous  way  in  the  following  discussion,  by  Mr.  Champ 
Clark  of  Missouri.  This  extract  will  also  serve  as  an  example  of  Congres- 
sional humor.  It  may  be  noted  in  passing  that  in  the  matter  of  wit  the  House 
is  not  always  very  exacting,  but  is  as  ready  to  be  amused  as  an  audience  at  a 
theatre.] 

******** 

MR.  CLARK  of  Missouri.  Let  me  ask  the  gentleman  a  question  now, 
while  he  is  on  his  feet.  Turn  about  is  fair  play. 

Mr.  GROSVENOR.    That  is  right. 

Mr.  CLARK  of  Missouri.  Are  we  going  to  have  any  river  and  harbor 
bill  at  this  session? 

Mr.  GROSVENOR.    If  we  need  one. 

Mr.  CLARK  of  Missouri.  The  gentleman  knows  that  we  need  it. 
Don't  try  to  get  out  of  it  in  that  way.  [Laughter.] 

Mr.  GROSVENOR.  My  recollection  is  that  under  a  Democratic  Con- 
gress, during  which  I  had  the  honor  to  be  on  the  Committee  on  Rivers 
and  Harbors,  at  the  end  of  the  second  session  we  passed  a  moderate 
river  and  harbor  bill,  and  a  Democratic  President  vetoed  it.  Now,  last 
year,  at  the  end  of  the  Fifty-eighth  Congress,  we  passed  a  large  river 
and  harbor  bill.  Under  our  new  system  of  contracting  we  shall  not  need 
a  new  river  and  harbor  bill  except  for  new  or  comparatively  new  pro- 
jects, so  that  the  sundry  civil  bill  will  carry  the  amount  of  appropriation 
for  the  rivers  and  harbors  far  in  advance  of  any  that  the  Democrats  have 
ever  passed. 

Mr.  CLARK  of  Missouri.  Now,  gentlemen,  I  want  you  to  bear  witness 
to  that  testimony.  That  statement  is  made  ex  cathedra.  The  gentle- 
man well  speaks  as  "one  having  authority." 

Mr.  GROSVENOR.    But  not  as  a  scribe. 

Mr.  CLARK  of  Missouri.  He  belongs  to  the  great  triumvirate  in  this 
House  that  runs  things,  composed  of  the  Speaker  and  the  gentleman 
from  Pennsylvania  [Mr.  Dalzell]  and  the  gentleman  from  Ohio.  He  is 
one  of  the  "Three  Czars,"  and  you  men  who  want  anything  done  for 
the  rivers  and  harbors  in  your  districts  hearken  unto  his  voice,  for  ac- 

1   Congr.  Record,  Jan.  8,  1906. 


286  AMERICAN   FEDERAL   GOVERNMENT 

cording  to  his  statement  just  made  there  is  not  going  to  be  anything 
done  except  on  work  that  has  already  been  started. 

Mr.  GROSVENOR.  I  hope  the  gentleman  will  not  misrepresent  the 
organization  of  the  House.  The  river  and  harbor  bill  is  a  privileged  bill, 
and  does  not  require  the  action  of  the  Committee  on  Rules.  I  hope  the 
gentleman  will  remember  that  in  all  the  future  of  his  life. 

Mr.  CLARK  of  Missouri.    Yes. 

Mr.  GROSVENOR.  I  hope  the  gentleman  will  remember  that  all  the 
future  of  his  life. 

Mr.  CLARK  of  Missouri.  I  will;  and  I  will  tell  you  what  else  I  will 
remember  —  that  whenever  they  get  up  a  bill  of  any  importance  and  get 
it  through  the  House  without  the  consent  of  the  Committee  on  Rules 
I  will  be  willing  to  exclaim  with  one  of  old:  "Now,  Lord,  lettest  now 
Thy  servant  depart  in  peace."  [Great  laughter  and  applause.]  I  do 
not  want  you  kindergarten  Congressmen  here,  especially,  to  labor  under 
any  misapprehension  as  to  what  is  going  to  happen  to  you,  because  the 
gentleman  from  Ohio  has  told  you.  If  there  is  any  work  going  on  in 
your  district  that  has  to  be  continued  to  keep  it  from  going  to  ruin  you 
will  get  a  little  money;  but  if  there  is  any  new  work,  no  matter  how 
important  or  pressing,  you  are  not  going  to  get  a  cent  for  it,  because 
they  have  not  got  the  money  to  give.  This  blessed  Dingley  bill,  the 
fount  of  every  blessing,  has  produced  a  deficiency  in  the  revenues  to  the 
amount  of  sixty  or  seventy  millions  of  dollars.  Now,  I  will  ask  the  gentle- 
man from  Ohio 

Mr.  PAYNE.    Now,  the  gentleman  wants  to  be  fair. 

Mr.  CLARK  of  Missouri.     Certainly. 

Mr.  PAYNE.    Which  bill  do  you  refer  to? 

Mr.  CLARK  of  Missouri.  The  Dingley  bill.  If  you  had  a  good  tariff 
bill  you  would  have  had  enough  money  to  carry  on  these  improvements. 

Mr.  PAYNE.    Such  a  one  as  the  Wilson  bill? 

Mr.  CLARK  of  Missouri.  A  revenue-producing  bill,  such  as  I  would 
draw  if  I  had  the  power  to  do  so. 

Mr.  PAYNE.  The  Wilson  bill,  under  which  we  were  running  behind 
every  year. 

Mr.  CLARK  of  Missouri.  If  the  Supreme  Court  had  not  held  the 
income-tax  provision  unconstitutional  we  would  have  got  plenty  of  reve- 
nue from  the  Wilson  bill. 

Mr.  PAYNE.  I  want  to  say  to  the  gentleman  that  the  income-tax 
provision  would  not  have  produced  money  enough  to  make  a  grease 
spot  under  the  Wilson  bill. 

Mr.  CLARK  of  Missouri.  The  only  reason  why  it  would  not  was  stated 
by  Mr.  Cockran,  of  New  York,  who  said  that  it  would  have  made  the 
wealthy  men  of  New  York  get  into  the  habit  of  committing  perjury  to 
keep  the  taxes  from  being  collected  on  their  incomes. 

Mr.  PAYNE.    The  gentleman  is  quoting  from  a  distinguished  Demo- 


ORGANIZATION    AND    RULES    OF   THE   HOUSE     287 

crat  upon  that.  To  return  to  what  I  was  just  saying,  as  to  there  not 
being  any  deficit  this  year  because  there  will  be  no  river  and  harbor  bill. 
It  would  not  make  any  difference  whether  there  was  a  river  and  harbor 
bill  this  year  or  not.  All  that  money  would  not  come  out  of  the  Treasury 
until  the  end  of  the  fiscal  year.  In  the  last  session  we  provided  liberally 
for  rivers  and  harbors,  and  that  money  is  now  being  paid  out  of  the  money 
in  the  Treasury. 

Mr.  CLARK  of  Missouri.  Now,  let  me  ask  you  whether  there  is  going 
to  be  any  public-building  bill  reported  this  year  ?  Now,  answer  that  — 
yes  or  no. 

Mr.  PAYNE.    I  am  not  a  member  of  that  committee. 

Mr.  CLARK  of  Missouri.    But  you  are  the  floor  leader  in  this  House. 

Mr.  PAYNE.  If  any  such  bill  was  brought  in  here  as  was  brought  in 
during  the  last  Congress  I  should  oppose  it  with  the  utmost  vigor  I 
have. 

Mr.  CLARK  of  Missouri.  Gentlemen,  I  am  sorry  to  see  the  chairman 
of  the  Committee  on  Ways  and  Means  resort  to  dodging  in  this  debate. 
[Laughter.] 

Mr.  PAYNE.    What  does  the  gentleman  mean? 

Mr.  CLARK  of  Missouri.  What  I  mean  is  that  you  you  do  not  tell  us 
frankly  whether  we  are  going  to  have  a  public-building  bill  or  not. 

Mr.  PAYNE.    I  do  not  know. 

Mr.  CLARK  of  Missouri.    Why  don't  you  know?    [Laughter.] 

Mr.  PAYNE.  Because,  like  the  gentleman  from  Missouri,  I  have  not 
been  consulted  on  that  subject. 

Mr.  CLARK  of  Missouri.  Why  do  you  not  consult  the  Speaker  and 
those  gentlemen  on  the  Committee  on  Rules? 

Mr.  PAYNE.  So  far  as  I  am  concerned,  I  am  not  interested  in  public 
buildings. 

Mr.  CLARK  of  Missouri.  Oh,  yes;  that's  it;  you  have  got  yours. 
[Great  laughter.] 

Mr.  PAYNE.  The  gentleman  is  right  about  that.  I  commenced  in  a 
Democratic  Congress  many  years  ago. 

Mr.  CLARK  of  Missouri.  You  have  been  here  a  long  time.  When 
these  kindergarten  statesmen  have  sat  here  as  long  as  you  have  they  will 
get  some  too. 

Mr.  PAYNE.  On  that  I  had  little  experience,  and  if  I  were  commenc- 
ing with  the  " kindergarten  class"  I  would  not  introduce  a  bill  for  a 
public  building  in  my  district. 

Mr.  CLARK  of  Missouri.  What  does  the  gentleman  from  Ohio  say 
about  a  public-building  bill  ?  I  want  to  get  at  the  facts.  [Laughter.] 

Mr.  GROSVENOR.  On  that  question  I  am  a  single  Member  of  the 
House  of  Representatives. 

Mr.  CLARK  of  Missouri.  Yes,  you  are;  and  much  more.  You  are 
one  of  the  governing  trio  —  one  of  the  ruling  elders. 


288  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  GROSVENOR.  I  shall  pass  upon  a  public-building  bill  exactly  as 
I  pass  upon  other  questions  that  come  before  this  House. 

Mr.  CLARK  of  Missouri.  I  will  ask  you  a  leading  question :  Do  you 
know  whether  it  is  the  intention  of  the  managers  of  this  Congress  that 
there  shall  not  be  any  river  and  harbor  bill,  except  as  you  have  described, 
and  there  shall  be  no  public-building  bill  at  this  session,  in  order  to  make 
buckle  and  tongue  meet? 

Mr.  GROSVENOR.  I  do  not  understand  either  branch  of  that  question 
in  the  affirmative. 

Mr.  CLARK  of  Missouri.     All  right. 

Mr.  GROSVENOR.  I  have  a  suspicion  on  the  river  and  harbor  question, 
because  of  an  interview  given  out  by  the  chairman  of  the  committee. 
As  to  the  public-building  question  I  have  no  knowledge,  no  information, 
and  no  belief. 

Mr.  CLARK  of  Missouri.  I  want  to  state  to  you  that  unless  you  gentle- 
men who  want  public  buildings  in  your  districts  and  improvements  of 
your  rivers  and  harbors  do  not  break  away  from  and  overthrow  this 
Republican  machine  in  the  House,  which  dominates  in  all  things,  you 
are  not  going  to  get  any  at  this  session  of  Congress.  You  can  write  that 
on  the  tablets  of  your  memory  now.  This  is  an  argumentum  ad  hominem. 
I  have  seen  that  game  played  two  or  three  times  since  I  have  been  here. 


CONGRESS.  AGAIN  DEBATING,     1902 

[The  following  articles  from  the  New  York  Evening  Post  bring  out  certain 
important  points  with  respect  to  the  action  of  Congress,  i.  The  character  of 
Congressional  debate.  2.  The  importance  of  permanence  of  service  in  Con- 
gress, and,  3.  Illustrations  of  slipshod  methods  in  legislation.  There  is  added 
to  these  a  brief  description  of  the  practice  obtaining  in  the  House  by  which 
members  obtain  leave  to  print  speeches  which  have  not  actually  been  delivered.] 

AN  unusual  interest  has  been  manifest  in  the  proceedings  of  either 
house  of  Congress  for  the  past  few  days.  One  sure  sign  of  this  is  the 
increased  space  which  the  newspapers  have  given  to  Washington  dis- 
patches. Congressmen  sometimes  complain  that  the  press  does  not 
report  their  debates  as  it  formerly  did.  The  fault  is  in  themselves.  Let 
them  make  their  debates  interesting,  and  the  newspapers,  which  always 
search  for  interesting  reading  as  they  do  for  hidden  treasure,  will  jump 
at  the  chance  of  printing  them.  Consider  the  columns  gladly  given  up 
to  the  Cuban  debate  in  the  House,  and  to  the  arguments  on  the  Chinese 
Exclusion  Bill  in  the  Senate.  They  show  how  press  reports  increase 
directly  as  the  square  of  public  interest  in  the  doings  of  Congress. 

What  has  been  the  secret  of  this  revived  attention  to  Congressional 
oratory  ?  It  is  not  far  to  seek.  In  the  first  place,  these  animated  discus- 
sions of  public  policy  have  been  free  from  the  deadening  influence  of  a 


ORGANIZATION   AND   RULES    OF   THE   HOUSE     289 

foregone  decision  on  strict  party  lines.  There  has  been  an  open  give- 
and-take  of  argument,  and  votes  have  been  changed  by  it.  We  have 
not  seen  a  party  leader,  beaten  in  his  logical  contentions,  rise  and  taunt 
the  master  of  the  better  reasons  with  the  fact  that  the  heavier  battalions 
were  against  him,  and  say,  "Well,  talk  as  you  will,  you  are  bound  to 
lose  when  the  roll  call  comes."  Now  it  is  the  very  breath  of  life  for  public 
debate  to  have  this  possibility  of  persuasion  in  it.  Merely  to  apply  "a 
fine  brute  majority"  is  the  way  not  simply  to  crush  your  opponents, 
but  to  destroy  the  interest  and  real  significance  of  debating  at  all.  When 
men  can  feel  compelled  to  say,  as  the  honest  English  Squire  did  to  the 
able  Parliamentary  orator  of  the  other  party,  "You  have  changed  my 
opinion  by  your  speech,  but  no  man  can  change  my  vote,"  then  we  need 
no  longer  inquire  why  Congressional  debates  have  decayed,  or  why 
public  interest  in  them  has  declined. 

It  is  obvious  that  the  discussion  of  the  Chinese  Exclusion  Bill  actually 
brought  about  a  vote  in  the  Senate  very  different  from  what  would  have 
been  cast  but  for  the  searching  analysis  of  the  measure.  Undebated,  it 
would  have  gone  through  triumphantly.  But  it  could  not  stand  exposure. 
Its  improprieties  and  indecencies,  its  illegalities  and  absurdities,  its  lack 
of  business  sense  and  of  humanity  alike,  were  so  driven  in  upon  the 
general  conviction  that  it  was  beaten  off  the  field.  The  New  England 
conscience  rose  in  revolt,  every  Senator  from  that  section  voting  against 
it  except  Mr.  Lodge.  He  preferred  to  side  with  Tillman  and  the  other 
advocates  of  barbarous  methods  in  dealing  with  the  Chinese;  but  the 
reason  and  conscience  of  New  England  —  indeed,  we  may  say  of  the 
Republican  party  —  were  against  the  bill  as  it  passed  the  House.  One 
could  wish  for  no  more  complete  demonstration  of  the  value  of  free 
debate  by  legislators  whose  minds  are  open,  and  whose  votes  are  at 
liberty  to  follow  their  judgment. 

In  the  House  the  case  has  been  different,  but  there,  too,  we  have  been 
given  a  vivid  illustration  of  the  cause  of  public  interest  in  Congressional 
proceedings.  It  is  not  simply  that  the  subject  under  discussion  is  large 
and  important.  So  was  the  Philippine  Tariff  Bill,  but  it  went  through 
amid  universal  indifference.  The  reason  was  that  then  we  had  the  cer- 
tainty of  a  party  majority  at  the  end,  while  debate  was  limited,  and  a 
rigid  rule  shut  out  the  possibility  of  so  much  as  offering  an  amendment. 
That  is  the  sure  way  to  kill  a  debate.  Of  course,  men  in  the  Opposition 
will  present  their  views  for  the  sake  of  a  "record,"  and  in  order  to  put 
the  party  in  power  "in  a  hole";  but  argument  for  such  purposes  only 
is  obviously  a  dead-and-alive  affair,  and  can  never  have  the  directness, 
the  fire,  the  power  and  point  of  a  speech  which  may  change  votes  and 
really  affect  the  course  of  legislation.  Note  the  great  contrast  offered  by 
the  progress  of  the  Cuban  Bill  through  the  House.  It  was  attended  by 
the  stir  and  interest  of  an  uncertain  result.  Party  lines  were  broken  up. 
Amendments  could  be  and  were  offered.  Tactical  positions  were  eagerly 

19 


2QQ  AMERICAN   FEDERAL   GOVERNMENT 

manoeuvred  for.  Far-reaching,  indirect  results  might  follow  in  national 
politics.  Hence  the  kindling  and  continuous  interest  with  which  the 
debate  was  followed  by  press  and  public;  hence  the  new  appeal  to  the 
debating  power  of  the  members  themselves,  with  the  discovery,  in  some 
cases,  of  an  unexpected  talent ;  and  hence  the  restoration  to  the  House 
of  a  measure  of  that  national  attention  which  used  to  be  fixed  upon  it 
as  the  theatre  of  great  debate. 

The  example  ought  not  to  be  lost  on  those  leaders  of  the  House  who 
have  the  shaping  of  its  methods  in  their  hands.  Let  them  abolish  some 
of  their  hard-and-fast  rules  for  stifling  debate,  or  else  making  it  perfunc- 
tory. Let  them  take  the  sense  of  the  House  freely  on  all  great  subjects, 
instead  of  so  hedging  it  about  that  the  conquered  cause  is  too  often  the 
one  really  pleasing  to  the  majority,  if  it  could  find  free  expression,  as 
well  as  to  Cato.  Let  them  open  the  true  parliamentary  career  for  talent 
by  showing  the  aspiring  orator  that  it  is  within  his  power  to  produce  con- 
viction and  lead  to  action.  In  a  word,  let  them  make  Congressional 
debate  what  debate  ought  to  be  everywhere  —  a  means  of  bringing  out 
the  better  reason  and  the  wiser  policy  —  and  we  shall  hear  much  less 
of  the  decadence  of  Congress,  or  the  growing  indifference  of  the  people 
to  what  goes  on  in  the  Capitol  at  Washington. 


INFLUENCE   IN   CONGRESS,     1906 

WASHINGTON,  June  5.  —  New  York's  representation  in  Congress  in 
recent  years  is  something  that  citizens  of  the  State  have  not  found  much 
pride  in  talking  about.  To  all  intents  and  purposes  it  is  wholly  unrep- 
resented in  the  Senate.  This  is  a  matter  of  common  notoriety,  and  re- 
quires no  comment.  Its  thirty-seven  representatives  in  the  House  form 
the  largest  delegation  from  any  one  of  the  States.  Pennsylvania  ranks 
next  with  thirty-two ;  Illinois  has  twenty-five,  Texas  sixteen,  and  Massa- 
chusetts fourteen.  Though  first  numerically,  the  New  York  delegation 
is  not  first  in  importance.  How  many  citizens  of  New  York  could  name 
the  whole  delegation,  or  even  the  representatives  from  New  York  city? 

Representative  Perkins  of  the  Rochester  district  had  something  to  say 
the  other  day  about  the  State's  past  representation  in  Congress,  which 
has  attracted  some  attention.  He  spoke  with  special  reference  to  the 
tenure  of  office  of  members,  and  made  the  point  that  the  men  who  were 
sent  here  after  civil  service  reform  principles  were  established  in  the 
Federal  Government  had  retained  their  offices  longer  than  the  represen- 
tatives of  other  days,  who  depended  on  the  spoils  system  to  keep  them 
here.  Mr.  Perkins  found  from  an  examination  of  the  records  that  New 
York  State,  from  the  time  of  its  organization  down  to  1860,  was  repre- 
sented by  about  600  members  of  Congress.  Of  these,  400,  or  about 
two-thirds  of  the  entire  number,  served  only  one  term  in  Congress. 


ORGANIZATION   AND    RULES    OF   THE   HOUSE     291 

One  hundred  and  fifty  were  able  to  stay  here  for  two  terms.  Of  the 
whole  600  that  came  during  the  period  from  1789  to  1860,  only  50  were 
allowed  to  remain  in  Congress  more  than  two  terms,  and  there  was  only 
one  out  of  the  600  during  the  period  of  seventy  years  who  was  elected 
by  his  constituents  for  ten  terms  in  Congress.  Mr.  Perkins  had  to  con- 
fess that  he  had  forgotten  the  name  of  that  man  whose  career  is  so 
unique  in  the  early  history  of  New  York. 

Those  were  the  days  when  members  of  Congress  controlled  Federal 
patronage  and  eked  out  their  days  of  political  life  by  the  free  disposal 
of  jobs  to  their  followers.  Mr.  Perkins  asked  this  pertinent  question: 
"What  does  it  show  when  400  members  of  Congress,  although  possessed 
of  this  political  patronage,  were  cut  off  at  the  end  of  their  first  term  of 
Congress?  Does  it  show  that  political  patronage  is,  as  is  supposed  by 
some,  a  means  to  lengthen  political  life,  or  does  it  show  that  it  is  a  means 
of  hastening  political  death?" 

From  1860  to  1880  the  New  York  experience  was  almost  precisely 
similar,  but  since  that  time  there  has  been  a  great  change  in  the  length 
of  service  on  the  New  York  members,  and  of  the  members  from  other 
States.  At  the  present  time  only  about  one-sixth  of  our  delegation  are 
first-term  men,  and  nearly  three-fourths  have  served  more  than  two 
terms,  where  formerly  two-thirds  of  the  delegation  were  first-term  men. 
Of  the  present  membership  of  the  whole  House,  more  than  one-half 
have  served  more  than  two  terms.  Whether  this  change  is  entirely  due 
to  the  partial  abolishment  of  the  spoils  system,  or  whether  electors  in 
the  various  States  have  waked  up  to  the  fact  that  ordinarily  the  longer  a 
man  stays  here  the  more  important  he  becomes,  and  the  more  power  he 
secures  in  the  House,  is  not  definitely  established.  Whatever  the  cause, 
a  distinct  tendency  on  the  part  of  the  people  to  give  their  representatives 
in  Congress  longer  tenure  of  office  is  noticeable.  Mr.  Perkins  offers 
this  explanation  of  the  change: 

"  It  seems  to  me  that  the  reasons  are  perfectly  apparent.  Our  predeces- 
sors had  unlimited  patronage.  Where  they  appointed  one  man  they 
necessarily  disappointed  ten  men.  These  men  at  once  formed  a  coherent 
body,  who  said,  '  If  we  can  get  out  the  man  who  is  in,  the  man  who  is  out 
will  get  us  in.'  There  was,  when  a  new  man  came  up  for  nomination  to 
defeat  the  sitting  member,  a  coherent  body  of  workers  who  were  actuated 
by  the  hope  that,  if  they  could  get  their  man  in,  there  was  a  $1,200  job 
down  in  Washington  waiting  for  them.  Well,  there  is  no  use  in  prom- 
ising those  jobs  now,  because  even  the  boys  in  the  wards  know  there  are 
no  such  jobs  to  give,  and  it  results  that,  instead  of  the  constant  presence 
of  this  united  group  of  men  working  to  get  out  the  sitting  member  in 
hopes  of  furthering  their  personal  interests,  a  member  is  left  undisturbed 
unless  he  has  given  dissatisfaction  to  the  community  as  a  whole.  This 
is  the  explanation,  it  seems  to  me.  It  must  be  the  chief  and  almost  the 
only  explanation  of  the  notable  fact  of  the  gradually  increasing  tenure 


292  AMERICAN  FEDERAL  GOVERNMENT 

of    office   in   the   House  of   Representatives   during   the   last   twenty 
years." 

Of  the  present  thirty-seven  New  York  members  these  arc  chairmen 
of  committees:  Payne,  Ways  and  Means;  \\adsworth,  Agriculture; 
Southwick,  Education;  Driscoll,  Elections  No.  3;  Ketrham,  Kxpemli 
tures  in  the  State  Department;  Sherman,  Indian  Affairs.  Or  course, 
these  chairmen  are  necessarily  limited  to  the  twenty-six  Republican 
members  of  the  delegation.  Three  of  these  are  important  committees 
—  Agriculture,  Indian  Affairs,  and  Ways  and  Means. 

Mr.  Perkins  himself  is  the  third  man  on  the  Committee  on  Foreign 
Affairs,  and  the  ranking  member  next  to  the  chairman  of  the  Committee 
on  Printing.  Mr.  Vreeland  is  the  sixth  in  rank  in  the  Naval  Affairs 
Committee,  and  is  also  a  member  of  the  Committee  on  Labor.  He  is  a 
"big-navy"  man  and  may  be  chairman  of  that  committee  some  clay. 
Littauer,  of  "gloves  and  gaunts"  fame,  is  a  member  of  the  important 
Appropriations  Committee,  and  has  charge  on  the  floor  of  the  House 
of  the  legislative,  executive,  and  judicial  appropriation  measures.  None 
of  the  New  York  city  men  is  strongly  placed  on  committees.  The  city 
representatives  are  new  men,  and,  of  course,  had  to  give  way  to  men  of 
longer  service,  and  Democratic  members  of  committees  are  not  doing 
much  business  under  the  present  organization  of  the  House. 

It  would  be  difficult  to  imagine  a  person  of  less  consequence  than  a 
new  member  of  the  House  of  Representatives  in  his  first  term.  They 
are  practically  negligible  quantities,  and  must  do  as  they  are  told,  or 
be  of  little  service  to  their  constituents.  Mr.  Lamar  of  Florida  and  Mr. 
Murphy  of  Missouri  are  two  shining  examples  of  the  fate  that  befalls 
the  disobedient.  Early  in  the  session  Mr.  Lamar  had  a  row  with  John 
Sharp  Williams,  the  minority  leader,  because  he  was  not  placed  on  the 
Committee  on  Interstate  Commerce.  He  kicked  over  the  traces  and 
publicly  denounced  Mr.  Williams  on  the  floor  of  the  House.  Since  that 
time,  despite  his  efforts,  he  has  been  only  a  figurehead.  Murphy  of  Mis- 
souri is  one  of  the  new  representatives  who  came  in  on  the  Roosevelt 
landslide.  He  beat  his  Democratic  opponent  by  only  thirty-six  votes. 
That  narrow  squeak,  it  would  seem,  should  have  made  him  cautious, 
but  he  has  bucked  against  the  speaker  several  times  at  this  session. 
Whether  the  Republican  Congress  campaign  committee  will  find  it 
advisable  and  wise  to  pay  much  attention  to  his  very  close  district  in  the 
autumn,  falls  under  the  head  of  debatable  questions. 

Iowa  and  Maine  are  two  States  that  long  ago  discovered  that  they 
would  get  more  than  their  share  of  what  good  things  were  coming  by 
electing  good  men  and  keeping  them  here.  These  two  States  in  recent 
years  have  exercised  a  great  influence  on  legislation  merely  through  the 
length  of  tenure  of  their  representatives.  There  are  no  two  more  impor- 
tant men  in  the  Senate  than  Hale  of  Maine  and  Allison  of  {owa.  Rep- 
resentative Hull  of  Iowa  is  chairman  of  the  great  Committee  on  Military 


ORGANI/.VI 'ION    AMJ    KILFS    OF   THF    IIOI'SK     293 

Affairs  in  the  House.  Hepburn  is  (  hairman  of  tin-  Committee  on  Inter- 
state and  Foreign  Commerce,  which  this  session,  at  least,  has  been  the 
most  important  committee  of  the  House.  Lacey  of  the  same  State  is 
( liairman  of  the  Committee  on  Public  Lands. 

Mr.  Ketcham  of  New  York  has  had  seventeen  terms  in  the  House, 
not  continuous.  Speaker  Cannon  has  had  sixteen  terms,  skipping  only 
the  Fifty-second  Congress.  Representative  Hingham  of  Pennsylvania 
has  served  fourteen  continuous  terms,  and  Mr.  Hilt  of  Illinois  has  had 
thirteen  continuous  terms.  Mr.  Payne  is  the  next  oldest  man  in  point 
vice.  He  has  had  eleven  terms,  not  continuous,  however,  but 
skipping  the  Fiftieth  Congress. 


SLIPSHOD   LEGISLATION,    1903 

WASHINGTON,  April  5.  —  "The  decadence  of  the  art  of  legislation" 
is  the  term  which  is  applied  to  the  tendency  in  the  last  few  decades  of 
Congressional  history  by  a  public  officer  who  has  recently  had  occasion 
to  make  an  exhaustive  and  critical  examination  of  the  Federal  statutes. 
The  earlier  laws,  in  his  opinion,  such  as  those  regulating  navigation,  the 
internal  revenue  laws,  and  the  administrative  features  of  the  customs 
laws,  are,  for  the  most  part,  models  of  construction.  They  are  precise  in 
their  wording,  comprehensive  and  exact  in  providing  for  all  possible 
contingencies,  and  so  clear  and  perspicuous  as  to  leave  little  difficulty  in 
their  construction  and  application. 

These  were  passed,  it  is  cynically  suggested,  at  a  time  when  the  sur- 
prising notion  obtained  that  the  business  of  the  legislative  department  of 
the  Government  was  to  legislate.  The  last  thirty  years  have  shown  a 
great  change  in  the  quality  of  legislation,  not  in  its  purport,  but  in  its 
workmanship.  The  statute  books  have  been  disfigured  by  slovenly, 
ambiguous,  and  nugatory  provisions  to  an  extent  that  surprises  every 
one  who  comes  to  study  the  matter. 

A  year  or  two  ago  a  publishing  house  issued  a  compilation  of  the 
United  States  statutes,  and  in  the  prospectus  summed  up  the  difficulties 
of  the  undertaking  in  these  words:  "In  preparing  this  compilation  the 
editors  have  found  a  number  of  amusing  proofs  that  the  complexity  of 
bills  passed  was  too  much  even  for  members  of  Congress  itself  to  unravel. 
They  have  come  upon  amendments  to  laws  that  have  been  repealed, 
amendments  that  overlook  previous  amendments,  new  laws  that  re- 
enacted  existing  and  forgotten  laws,  etc." 

But  even  this  falls  short  of  an  adequate  statement  of  the  conditions 
that  exist.  For  example  a  law  found  in  32  Statutes  at  Large,  786,  begins 
as  follows : 

An  act  to  amend  an  act  approved  March  2,  1895,  relating  to  public  printing. 
Be  it  enacted,  etc.     That  the  first  and  tenth  paragraphs  of  the  Printing 


294  AMERICAN   FEDERAL   GOVERNMENT 

of  January  12,  1895,  following  the  paragraph  which  reads:  "The  public 
printer  shall  furnish  the  Congressional  Record  as  follows,  and  shall  furnish  no 
others  gratuitously  in  addition  thereto,"  be  amended,  etc. 

It  will  be  noted  that  the  act  mentioned  in  the  title  is  not  the  one 
amended  by  the  text,  and  reference  to  the  statute  book  shows  that  these 
two  have  no  relation  whatever  to  each  other.  Moreover,  the  act  of 
January  12,  1895,  was  not  divided  into  numbered  paragraphs  at  all,  so 
that  part  of  the  description  furnishes  no  guide  as  to  where  the  amend- 
ment is  intended  to  be  inserted,  and  is  simply  misleading.  By  reading 
through  the  twenty-four  pages  of  the  law  the  weary  seeker  finds  in  sec- 
tion 73  the  language  quoted,  and  thus  is  able  to  locate  the  passage  to 
which  the  amendment  refers. 

Another  instance  might  be  cited  where  Congress  solemnly  repealed 
certain  words  in  an  act  designated  when  no  such  words,  or  any  of  like 
purport,  could  be  found  anywhere  in  the  act. 

But  the  most  prolific  source  of  confusion  is  the  mischievous  and  grow- 
ing practice,  so  often  attempted  during  the  past  weeks,  of  inserting 
general  legislation  in  appropriation  bills.  Some  curious  results  have 
been  brought  about  by  the  inhibition  in  House  rule  21 :  "Nor  shall  any 
provision  changing  existing  law  be  in  order  in  any  general  appropriation 
bill  or  in  any  amendment  thereto."  While  this  is  on  its  face  an  absolute 
prohibition,  yet  in  practice  it  means  that  any  provision  can  be  inserted 
in  an  appropriation  bill,  as  long  as  no  member  objects.  Thus  new  legis- 
lation can  be  put  in  by  unanimous  consent.  Since  each  member's  pet 
measure,  if  offered  in  the  form  of  a  rider,  must  run  the  gantlet  of  his  386 
colleagues,  any  one  of  whom  could  give  it  a  death  stroke  by  rising  in  his 
seat  and  uttering  eleven  words,  he  makes  it  as  inconspicuous  as  possible 
in  phraseology.  The  House  is  very  frequently  willing  to  let  a  bit  of  legis- 
lation go  through  without  objection  when  it  does  not  show  on  its  face 
that  it  is  a  change  in  the  existing  law,  but  a  clause  would  not  stand  a 
moment's  chance  if  it  said  in  so  many  words,  "Section  41,144  of  the 
Revised  Statutes  is  hereby  amended  to  read  as  follows." 

Thus  comes  about  an  evasion.  The  provision  desired  is  drawn  as  if 
it  had  no  relation  to  any  previous  act,  and  so  passed.  There  are  then 
two  provisions,  more  or  less  conflicting,  on  the  same  subject-matter,  and 
the  officers  charged  with  their  execution  are  left  to  guess  how  far  the  later 
supersedes  the  earlier.  The  confusion  is  carried  into  almost  every  de- 
partment of  the  Government. 

As  to  a  remedy  for  the  evil,  the  critic  already  quoted  is  of  the  opinion 
that  Congress,  in  order  to  consider  adequately  all  measures  of  needed 
legislation  and  mature  them  with  respect  to  their  phraseology,  should 
remain  in  session  for  at  least  nine  months  in  every  year.  He  further  be- 
lieves that  the  state  of  affairs  which  his  researches  disclose  furnishes  one 
of  the  best  possible  arguments  against  Congressional  interference  in 


ORGANIZATION   AND    RULES    OF   THE   HOUSE     295 

executive  matters.  Without  pointing  such  a  moral  as  might  be  drawn 
from  the  postal  scandal,  it  is  safe  to  say  that  if  legislators  confined  their 
duties  to  legislating  their  work  would  be  better  done. 

While  the  number  of  slovenly  enactments  actually  in  the  statutes  is 
startling  enough,  those  which  are  headed  off  in  the  House  and  Senate 
committees  are  almost  past  counting.  The  individual  members,  who 
introduce  the  greater  part  of  their  bills  at  some  one's  request,  and  with 
little  scrutiny,  do  not  feel  the  responsibility  of  looking  up  the  antece- 
dents of  each  such  piece  of  legislation.  Any  one  who  has  examined  the 
mass  of  reported  bills  at  a  session  must  have  noticed  the  great  number 
of  instances  in  which  a  committee  has  recast  a  bill  entirely  without 
changing  in  any  way  its  purport.  For  instance,  a  member  is  asked  by 
some  body  of  his  constituents  to  put  through  a  bill  authorizing  the  erec- 
tion of  a  bridge  across  a  stream  in  his  district.  They  suppose,  and  he 
supposes,  that  no  one  ever  planned  such  a  bridge  before.  The  bill,  there- 
fore, is  introduced  on  the  supposition  that  the  project  is  new,  and  con- 
tains the  usual  clause  authorizing  the  secretary  of  war  to  determine 
whether  the  bridge  will  interfere  with  navigation.  The  committee, 
however,  looks  up  the  law,  and  discovers  —  what  the  bill's  sponsor 
should  have  ascertained  before  introducing  —  that  a  bridge  at  the  same 
point  on  the  same  river  was  provided  for  years  ago,  and  all  that  is 
necessary  is  some  slight  amendment  of  the  former  law,  or  an  extension 
of  time.  The  committee  reports  the  bill  with  the  comprehensive 
amendment,  "strike  out  all  after  the  enacting  clause,  and  insert  the 
following." 

Often  enough,  the  committee  or  its  clerk,  has  to  perform  the  functions 
of  a  teacher  of  rhetoric,  cutting  out  slipshod  English  and  ambiguities. 

The  clerks  of  important  committees  in  the  House  and  Senate  are 
veterans,  some  of  them  having  served  under  a  half-dozen  different 
chairmen  of  both  political  parties,  and  these  men  are  experts  in  the 
technique  of  legislation.  But  the  clerk  of  a  less  important  commit- 
tee comes  to  that  position  merely  as  the  private  secretary  of  the  chair- 
man, has  divided  duties,  is  less  experienced,  and  takes  less  pride  in  his 
work. 

The  real  fundamental  difficulty,  perhaps,  is  that  a  congressman  may 
have  the  most  sound  and  statesmanlike  views  as  to  what  he  wants 
to  accomplish,  and  still  be  careless  and  neglectful  on  such  points  as 
those  described.  Some  good  and  wise  laws  have  been  tacked  to  ap- 
propriation bills,  or  have  been  enacted  in  apparent  ignorance  of 
the  existing  laws  on  the  same  subject.  This  very  fact  furnishes  an 
added  argument  for  care  for  the  form  as  well  as  the  subject-matter 
of  legislation. 


296  AMERICAN   FEDERAL   GOVERNMENT 


GENERAL   LEAVE   TO   PRINT1 

MR.  PAYNE.     Mr.  Speaker,  I  move  to  suspend  the  rules  and  agree 
to  the  following  order,  which  I  send  to  the  desk  and  ask  to  have  read. 
The  Clerk  read  as  follows: 

Ordered,  That  general  leave  to  print  be  granted  Members  from  the  adoption 
of  this  order  until  five  days  after  the  adjournment  of  the  present  session  of 
Congress. 

The  SPEAKER.    Is  a  second  demanded? 

Mr.  WILLIAMS.     I  demand  a  second. 

The  SPEAKER.  Under  the  rule,  a  second  is  ordered.  The  gentleman 
from  New  York  is  entitled  to  twenty  minutes  and  the  gentleman  from 
Mississippi  to  twenty  minutes. 

Mr.  PAYNE.     Mr.  Speaker,  I  reserve  my  time. 

Mr.  WILLIAMS.  Mr.  Speaker,  in  my  opinion,  at  all  times  it  is  a  bad 
policy  to  encumber  the  Record  with  speeches  undelivered  upon  the  floor, 
especially  when  the  speeches  do  not  go  out  with  any  notice  to  the  people 
that  they  were  not  delivered  here.  They  are,  without  that  notice,  a  sort 
of  deception  of  the  people  of  the  United  States.  If  there  had  been  no 
sharp  partisan  clash  between  the  two  parties  this  year  I  would  still  have 
objected,  as  I  did  successively  in  the  Fifty-eighth  Congress,  to  a  resolu- 
tion of  this  description.  I  believe  that  what  purports  to  have  been  said 
upon  this  floor  ought  to  be  said  upon  this  floor,  in  the  presence  of  one's 
colleagues,  with  an  opportunity  for  reply.  I  believe  that  especially  the 
habit  of  printing  after  Congress  has  adjourned  and  printing  whatsoever 
one  may  evolve  out  of  one's  inner  consciousness,  without  any  oppor- 
tunity of  reply  at  all,  especially  upon  the  eve  of  an  election,  printing 
anything  or  everything,  is  peculiarly  an  advantage  for  an  unscrupulous 
man  as  it  is  peculiarly  unfair  to  the  honest  man,  because  the  letter  will 
publish  only  what  he  knows  or  believes  to  be  exactly  true.  This  is  a 
reward,  therefore,  to  men  who  are  unscrupulous,  who  are  dishonest  of 
statement,  who  are  careless  and  reckless  of  what  they  are  willing  to  say. 
Mr.  Speaker,  I  understand,  of  course,  why  this  is  offered  by  the  leader  of 
the  majority  at  this  particular  time. 

The  majority  party  has  pretty  nearly  gone  into  commission.  It  has 
organized  commissions  to  consider  nearly  everything.  It  has  abdicated 
its  legislative  functions.  It  has  delegated  to  commissions  of  one  sort  or 
another  many,  and  it  is  going  to  delegate  to  more  commissions  a  great 
many  more,  public  questions  of  every  description.  It  has  spent  unpar- 
alleled sums  of  money  belonging  to  the  people,  a  great  deal  of  it  waste- 
fully.  It  requires  very  much  explanation.  It  would  be  cheaper  and 

1  Congr.  Record^  May  26,  1908. 


ORGANIZATION   AND    RULES    OF  THE   HOUSE     297 

better  for  it  to  be  made  by  a  few  selected  men  to  whom  there  would  be 
no  opportunity  of  reply,  whose  remarks  in  the  Record  will  not  be  seen 
by  any  Democrat,  will  be  printed  after  adjournment,  so  that  a  reply 
can  not  be  made  in  such  a  way  as  that  the  reply  could  be,  like  the  ob- 
servations themselves,  franked  to  the  country.  The  Republican  party, 
as  I  said  a  moment  ago,  has  appointed  so  many  commissions  that  it  had 
better  appoint  just  one  more.  In  Great  Britain  when  a  king  goes  crazy 
—  and  I  am  not  saying  that  the  Republican  party  is  a  king,  only  that  it 
is  here  in  Congress  crazy  —  the  great  seal  is  put  into  commission  for 
some  time.  After  you  get  through  with  the  currency  commission  and 
all  the  other  commissions  you  have  appointed,  too  numerous  for  me  to 
remember  at  this  moment,  it  would  be  very  well  for  you  to  appoint  one 
more  commission  and  call  it  a  commission  upon  Republican  defense, 
and  Republican  defense  through  the  Record  after  the  House  has  ad- 
journed, with  no  opportunity  to  reply  to  it.  [Applause  on  the  Demo- 
cratic side.] 

You  have  had  your  day  in  court  just  as  much  as  we  have  had.  There 
have  been  more  of  you  than  there  have  been  of  us.  You  are  at  least  of 
equal  ability  with  us  —  or  you  claim  to  be,  and  we  will  discourteously 
deny  it.  The  only  disadvantage  that  you  have  had  is  that  you  have  had 
a  bad,  weak  cause,  or  many  bad,  weak  causes.  You  have  been  doing 
nothing,  and  you  are  going  now  to  try  to  defend  the  policy  of  doing 
nothing.  You  have  proudly,  even  vauntingly,  asserted  that  you  were 
''responsible  for  commissions  and  omissions  of  legislation."  You  will 
have  some  degree  of  explanation  to  make  concerning  your  "commis- 
sions," and  you  will  have  a  great  deal  of  explanation  to  make  concerning 
your  "omissions."  Of  course  you  will  undertake  to  say  that  one  reason 
why  you  have  not  done  a  great  many  things  the  country  demands  and 
things  which  your  President  has  demanded  and  things  which  Democracy 
has  joined  in  demanding,  was  because  the  Democracy  by  demanding 
them,  so  far  as  it  had  the  parliamentary  power  to  demand  and  cry  out 
aloud  for  them,  had  "prevented  you"  from  doing  them. 

Mr.  Speaker,  it  seems  to  me  that  in  ordinary  fairness,  in  ordinary 
honesty,  if  there  were  no  sharp  party  clash,  this  sort  of  resolution  ought 
not  to  pass  this  House.  I  say  that  one  reason  why  the  House  of  Repre- 
sentatives has  sunk  so  low  is  this:  "Its  Congressional  Record  has  be- 
come so  bulky  that  nobody  reads  it.  The  people  of  the  United  States 
get  their  information  of  what  occurs  from  the  press,  and  the  press  tries 
to  be  accurate,  but  it  necessarily  can  not  do  it.  The  press,  of  course, 
can  not  be  full  in  its  reports. 

The  reason  why  the  Congressional  Record  is  so  bulky  that  nobody  can 
keep  up  with  it  is  because  what  goes  into  it  is  not  what  is  said  upon  this 
floor.  In  an  ordinary  Congress  50  per  cent  of  what  goes  into  the  Con- 
gressional Record  are  things  never  said  upon  the  floor  —  put  in  there 
under  leave  to  print  upon  particular  bills,  under  general  leave  to  print, 


298  AMERICAN   FEDERAL   GOVERNMENT 

and  under  orders  such  as  this.  I  say  that  this  resolution,  if  carried,  is 
especially  unfair  and  deceitful,  not  to  one  another  as  Representatives 
alone,  but  to  the  American  people.  To  introduce  a  resolution  to  allow 
men  to  shove  into  the  Congressional  Record  what  they  please  for  five 
days  after  Congress  has  adjourned,  without  any  opportunity  for  any- 
body to  read  it  and  reply  to  it  with  equal  frankable  privilege  is  disin- 
genuous, if  not  worse,  and  I  hope  that  this  resolution  will  not  pass. 
[Applause  on  Democratic  side.] 

Mr.  Speaker,  I  reserve  the  balance  of  my  time. 

Mr.  PAYNE.  Mr.  Speaker,  I  have  but  a  few  words  to  say.  It  has  been 
the  custom  of  the  House  always  toward  the  close  of  the  session  to  grant 
by  unanimous  consent  general  leave  to  print  for  a  period  of  from  five 
to  ten  days.  That  has  been  almost  a  universal  custom,  and  the  gentle- 
man while  he  has  been  here  has  assented  to  it  by  not  making  objection. 
It  is  more  imperative  that  this  resolution  pass  at  this  session  of  Congress 
because  of  the  three  or  four  weeks  of  time  wasted  —  it  is  not  necessary 
to  say  any  longer  how  or  by  whom  —  in  the  House  during  the  past  two 
months.  If  that  time  could  have  been  utilized  in  general  intelligent 
debate,  perhaps  there  would  have  been  no  necessity  for  this  resolution 
at  this  time,  but  it  was  used  otherwise. 


VIII 
FINANCIAL   LEGISLATION 

JAMES    A.    GARFIELD    ON    REVENUE   BILLS1 

[Under  the  constitution,  the  House  of  Representatives  has  the  exclusive 
power  of  introducing  bills  to  raise  revenue.  Controversies  have  arisen  with  the 
Senate  concerning  the  power  of  the  latter  body  to  propose  amendments  which 
would  materially  alter  the  character  of  the  original  measure.  This  matter 
has  already  been  taken  up  in  Mr.  McCall's  article,  on  page  135.  The  following 
extract  from  a  speech  by  James  A.  Garfield,  in  April,  1872,  is  important  in  this 
connection.] 

AT  the  second  session  of  the  Forty-second  Congress  the  question  of 
originating  revenue  bills  came  up  in  a  new  form.  This  is  shown  by  the 
following  resolution,  adopted  by  the  House,  April  2,  1872,  on  the  motion 
of  Mr.  Dawes,  of  Massachusetts: 

Resolved,  That  the  substitution  by  the  Senate,  under  the  form  of  an  amend- 
ment, for  the  bill  of  the  House,  entitled  "An  Act  to  repeal  existing  Duties  on 
Tea  and  Coffee,"  of  a  bill  entitled  "An  Act  to  decrease  existing  Taxes,"  con- 
taining a  general  revision,  reduction,  and  repeal  of  laws  of  imposing  impost 
duties  and  internal  taxes,  is  in  conflict  with  the  true  intent  and  purpose  of  that 
clause  of  the  Constitution  which  requires  that  "all  bills  for  raising  revenue 
shall  originate  in  the  House  of  Representatives";  and  that  therefore  said 
substitute  for  the  House  bill  do  lie  upon  the  table. 

Mr.  Garfield  made  a  brief  speech  on  the  respective  rights  of  the  two  houses, 
but  only  his  remarks  on  the  new  question  are  given. 

Mr.  Speaker,  —  The  case  now  before  us  is  new  and  difficult.  I  think 
the  same  point  has  never  before  come  into  controversy.  It  raises  the 
question  how  far  the  Senate  may  go  in  asserting  their  right  to  "propose 
or  concur  with  amendments,  as  on  other  bills." 

We  must  not  construe  our  rights  so  as  to  destroy  theirs,  and  we  must 
take  care  they  do  not  so  construe  their  rights  as  to  destroy  ours.  If  their 
right  to  amendment  is  unlimited,  then  our  right  amounts  to  nothing 
whatever.  It  is  the  merest  mockery  to  assert  any  right.  What,  then,  is 

1  See  Works  of  James  A.  Garfield,  I,  698. 
299 


300  AMERICAN   FEDERAL   GOVERNMENT 

the  reasonable  limit  to  this  right  of  amendment  ?  It  is  clear  to  my  mind 
that  the  Senate's  power  to  amend  is  limited  to  the  subject-matter  of  the 
bill.  That  limit  is  natural,  is  definite,  and  can  be  clearly  shown.  If  there 
had  been  no  precedent  in  the  case,  I  should  say  that  a  House  bill  relating 
solely  to  revenue  on  salt  could  not  be  amended  by  adding  to  it  clauses 
raising  revenue  on  textile  fabrics,  but  that  all  the  amendments  of  the 
Senate  should  relate  to  the  duty  on  salt.  To  admit  that  the  Senate  can 
take  a  House  bill  consisting  of  two  lines,  relating  specifically  and  solely 
to  a  single  article,  and  can  graft  upon  that  bill  in  the  name  of  an  amend- 
ment a  whole  system  of  tariff  and  internal  taxation,  is  to  say  that  they 
may  exploit  all  the  meaning  out  of  the  clause  of  the  Constitution  which 
we  are  considering,  and  may  rob  the  House  of  the  last  vestige  of  its 
rights  under  that  clause.  I  am  sure  that  this  House,  remembering  the 
precedents  which  have  been  set  from  the  First  Congress  until  now  will 
not  permit  this  right  to  be  invaded  on  such  a  technicality. 

Now  I  will  not  say,  for  I  believe  it  cannot  be  held,  that  the  mere  length 
of  an  amendment  shall  be  any  proof  of  invasion  of  the  privileges  of  the 
House.  True,  we  sent  to  the  Senate  a  bill  of  three  or  four  lines,  and  they 
have  sent  back  a  bill  of  twenty  printed  pages.  I  do  not  deny  their  right 
to  send  back  a  bill  of  a  thousand  pages  as  an  amendment  to  our  two 
lines;  but  I  do  insist  that  their  thousand  pages  must  be  on  the  subject- 
matter  of  our  bill.  It  is  not  the  number  of  lines,  nor  is  it  —  I  now  re- 
spond to  my  friend  from  Maine,1  who  asked  me  a  question  —  nor  is  it 
the  amount  of  revenue  raised  or  reduced,  of  which  we  have  a  right  to 
complain.  We  may  pass  a  bill  to  raise  $1,000,000  from  tea  or  coffee; 
the  Senate  may  move  so  to  amend  it  as  to  raise  $100,000,000  from  tea 
and  coffee,  if  such  a  thing  was  possible ;  or  they  may  so  amend  it  as  to 
make  it  but  one  dollar  from  tea  and  coffee ;  or  they  may  reject  the  bill 
altogether. 

Mr.  PETERS.     May  not  the  Senate  add  other  articles? 

If  we  refer  to  the  practice  of  the  two  houses,  doubtless  the  Senate  has 
usually,  without  any  question  having  been  raised  by  the  House,  added 
other  articles.  And  I  do  not  say  that  this  would  be  trenching  on  our 
privileges  on  a  general  revenue  bill.  But  the  bill  on  which  these  amend- 
ments were  made  was  in  no  sense  a  general  revenue  bill.  It  was  an  act 
relating  exclusively  to  a  single  article.  There  was  nothing,  either  on 
the  title  or  in  the  bill  itself  to  indicate  that  it  was  intended  as  a  general 
revenue  bill.  Furthermore,  it  was  well  known  that  the  proper  committee 
of  the  House  were  preparing  a  general  bill,  in  which  the  whole  subject 
was  to  be  opened  for  consideration.  Considering  all  the  circumstances 
of  the  case,  and  particularly  the  fact  that  on  the  single  clause  of  our  bill 
relating  to  but  one  article  of  taxation,  the  Senate  has  ingrafted  a  general 

1  Mr.  Peters. 


FINANCIAL   LEGISLATION  301 

bill,  embracing  not  only  the  tariff  generally,  but  our  whole  system  of  in- 
ternal taxation,  it  is  clear  that  the  ground  we  now  take  is  not  question- 
able ground,  and  it  becomes  the  undoubted  duty  of  the  House  to  stand 
on  its  rights,  and  refuse  to  consider  this  bill. 

Mr.  PETERS.  Then  allow  me  to  ask  the  gentleman  if  the  rule  is  a 
fixed  one,  or  one  in  the  discretion  of  the  House. 

I  will  say  this:  it  is  a  fixed  rule.  If  the  House  has  ever  slept  on  its 
rights  it  ought  not  to  be  now  concluded  from  asserting  them  because  of 
its  past  neglect ;  and  if  there  ever  was  a  time  in  the  history  of  the  govern- 
ment when  this  House  should  reclaim  and  assert  its  rights,  it  is  now  and 
here,  when  on  the  naked  lay  figure  of  a  two-line  bill,  the  Senate  proposes 
to  impose  the  entire  revenue  system  of  the  government.  If  the  bill  from 
the  Senate  now  on  your  table,  Mr.  Speaker,  be  recognized  by  us,  we  shall 
have  surrendered  absolutely,  not  only  the  letter,  but  the  spirit  of  the 
rule  hitherto  adopted,  and  with  it  our  exclusive  privilege  under  the 
Constitution. 

If  it  be  said  that  this  resolution,  which  the  House  is  asked  to  adopt, 
is  an  unusual  one,  I  answer  that  the  circumstances  under  which  it  is  pro- 
posed are  equally  unusual.  It  is  well  known  that  the  Senate,  even  in  the 
recess,  have  been  deliberately  at  work  preparing  the  tariff  bill ;  and  they 
have  only  been  waiting  the  slight  opportunity  afforded  by  the  two  lines 
which  the  House  sent  them,  to  initiate  and  take  control  of  our  tariff 
legislation.  It  is  this  course  of  procedure  which  the  House  is  called  upon 
to  resist. 


ANNUAL   STATEMENT   OF   APPROPRIATIONS1 

[The  general  character  of  fiscal  legislation,  the  difficulties  confronting  the 
Committee  on  Appropriations,  and  the  size  of  the  annual  appropriations,  will 
be  apparent  from  the  annual  review  of  appropriations  and  expenditures 
given  by  Mr.  J.  A.  Tawney,  the  chairman  of  the  Committee  on  Appropriations. 
The  reader  will  note  that  the  Committee  on  Appropriations  has  jurisdic- 
tion over  none  of  the  special  appropriation  bills,  such  as  that  for  agriculture, 
the  army,  the  navy,  the  post  office,  etc.  The  control  of  these  appropriations 
was  distributed  among  the  committees  dealing  with  the  subject-matter  of 
these  interests  in  the  eighties.  This  step  has  greatly  complicated  fiscal  legis- 
lation and  has  made  it  impossible  to  have  a  unified  budget. 1 

MR.  TAWNEY  said: 

Mr.  Speaker:  The  annual  expenditures  of  our  Government  exceed 
those  of  any  other  government  in  the  world.  The  work  of  analyzing  the 
estimates  for  them,  of  inquiring  into  their  necessity,  together  with  the 

1  Congr.  Record,  May  30,  1908. 


302  AMERICAN   FEDERAL   GOVERNMENT 

needful  inquiry  into  the  methods  of  the  Departments  in  administering 
and  in  expending  previous  appropriations,  is  rapidly  becoming  the  most 
important  duty  and  the  most  prodigious  task  to  be  performed  in  connec- 
tion with  the  legislative  department  of  the  Government,  a  task  whose 
magnitude  is  not  appreciated,  nor  is  the  labor  necessary  in  its  perform- 
ance understood.  It  requires  constant  application  from  the  beginning 
until  the  close  of  the  session  and  the  most  careful  discrimination  to  prevent 
needless  appropriations  for  the  Federal  Government  or  unauthorized 
appropriations  for  the  exercise  of  governmental  functions  belonging  to 
the  States  or  for  the  doing  of  that  which  belongs  exclusively  to  private 
interests. 

So  far  as  this  work  has  devolved  at  this  session  upon  the  committees  of 
this  House  having  appropriating  jurisdiction,  I  know  it  has  been  per- 
formed conscientiously  and  faithfully.  Speaking  for  the  Committee  on 
Appropriations,  I  can  say  that  it  has  been  performed  with  no  other 
thought  or  purpose  than  to  supply  the  actual  needs  of  the  public  service 
within  the  prescribed  functions  of  the  Federal  Government,  without 
reference  to  the  personal  desires  of  those  from  whom  the  increased  esti- 
mated expenditures  or  the  recommendations  for  increased  appropria- 
tions emanated.  I  would  not  be  worthy  of  the  position  I  occupy  on  the 
Committee  on  Appropriations  -if  I  did  not  acknowledge  the  gratitude 
I  owe  to  its  members  for  their  loyal  support  and  the  efficient  and 
intelligent  service  they  have  rendered  in  the  committee's  endeavor  to 
prevent  needless  or  extravagant  appropriations  or  the  authorization 
of  new  services  outside  of  the  legitimate  functions  of  the  Federal 
Government. 

Mr.  Speaker,  with  the  passage  of  this  bill  all  the  great  supply  bills  of 
the  Government  for  the  fiscal  year  1909  will  have  been  passed,  and  the 
session  will  practically  end.  It  is  a  custom  as  well  as  a  duty  we  owe  to 
the  people  to  state,  at  the  close  of  each  session,  the  amounts  appropriated 
and  the  estimated  revenues  for  the  fiscal  year  for  which  the  appropria- 
tions have  been  made.  In  doing  so  the  people  are  afforded  an  oppor- 
tunity to  know  and  compare  our  appropriations  with  those  of  previous 
sessions,  and  to  determine  whether  or  not  they  have  been  wisely  or  un- 
wisely made;  whether  or  not  they  are  extravagant  in  amount,  or  are 
no  larger  than  are  necessary  to  meet  the  needs  of  the  public  service. 

The  responsibility  of  the  House  of  Representatives  in  respect  to  the 
appropriation  of  money  from  the  Federal  Treasury  is  a  direct  respon- 
sibility we  owe  to  the  people.  It  is  a  non-partisan  responsibility.  No 
political  party,  when  in  control  of  the  Government,  can  have  any  other 
policy  in  respect  to  appropriations  than  that  of  appropriating  no  more 
and  no  less  than  is  necessary  for  the  exercise  of  the  constitutional  func- 
tions of  the  Government.  To  us,  as  the  direct  representatives  of  the 
people,  the  Constitution  intrusts  the  power  and  the  duty  of  originating 
the  bills  that  authorize  the  distribution  of  the  public  revenue. 


FINANCIAL   LEGISLATION  303 

THE  DEMOCRATIC  FILIBUSTER 

It  is  a  matter  of  sincere  regret  that,  to  accomplish  a  political  purpose 
or  to  gain  some  partisan  advantage  in  the  coming  Presidential  campaign, 
the  minority  in  this  House  deemed  itself  justified  in  disregarding  its 
responsibility  in  this  respect  by  pursuing  the  policy  it  has  followed  for 
almost  two  months,  under  the  leadership  of  the  distinguished  gentle- 
man from  Mississippi  [Mr.  Williams],  a  policy  which  made  it  necessary 
for  the  majority,  in  order  to  transact  any  public  business,  to  adopt  rules 
of  procedure  under  which  nonpartisan  questions  in  relation  to  the  ap- 
propriation of  public  moneys  could  not  be  considered  with  that  freedom 
of  discussion  and  action  that  otherwise  would  have  enabled  this  House 
to  have  prevented  many  of  the  increases  that  were  finally  agreed  to.  As 
the  result  of  these  increases,  the  aggregate  of  the  appropriations  made 
at  this  session  is  larger  by  many  millions  than  it  otherwise  would  be. 

The  constitutional  right  of  one-fifth  of  the  membership  of  the  House 
to  have  a  yea-and-nay  vote  on  any  measure,  invoked  by  the  minority 
and  applied  to  every  important  and  unimportant  step  in  legislation  in 
order  to  make  effective  their  prolonged  and  unprecedented  filibuster, 
instituted  two  months  ago  and  persisted  in  until  these  very  last  hours 
of  the  session,  compelled  us  of  the  majority  to  resort  to  the  drastic  rule 
under  which  we  have  operated  in  order  to  enact  before  the  close  of  the 
fiscal  year  the  requisite  supply  bills  to  maintain  the  life  of  the  Govern- 
ment. Without  the  rule  and  policy  thus  forced  upon  us  the  appropriation 
bills,  containing  enormous  increases  by  Senate  amendments,  partic- 
ularly for  the  Army  and  Navy,  would  have  received  from  the  member- 
ship of  this  body  deliberate  and,  I  believe,  different  and  more  effective 
consideration.  We  could  devise  a  rule  that  would  compel  the  minority 
to  permit  a  vote  and  conclusion  on  these  absolutely  necessary  measures 
for  support  of  the  Government,  but  we  could  not  deprive  them  of  their 
power,  in  the  exercise  of  a  constitutional  prerogative,  to  so  consume  the 
time  of  the  House  as  to  effectually  preclude  discussion  and  deliberate 
consideration  of  many  of  the  appropriation  bills. 


UNUSUAL  DEMANDS  FOR  APPROPRIATIONS 

While  the  action  of  the  minority  in  this  House  is  not  responsible  for 
the  increased  estimates  and  the  demands  for  increased  appropriations, 
the  policy  which  the  minority  has  pursued  is  responsible  to  a  greater 
extent  than  any  other  cause  for  the  lack  of  complete  success  which  has 
attended  the  efforts  of  those  who  resisted  these  demands  for  increased 
appropriations. 

The  extent  of  these  demands  and  the  sources  from  which  they  came 


304  AMERICAN   FEDERAL   GOVERNMENT 

should  also  be  stated,  in  justice  to  this  House.  A  review  of  these  demands 
as  they  appear  in  official  documents  presented  to  Congress  will  show  that 
the  estimates  for  the  established  public  service  and  for  previously  au- 
thorized public  works  for  the  next  fiscal  year  were  more  than  $156,000,000 
in  excess  of  appropriations  made  for  the  same  purposes  during  the  last 
session  of  the  Fifty-ninth  Congress.  These  demands  or  increased  esti- 
mated expenditures,  many  of  us  believe,  did  not  rest  in  fact  upon  the 
necessities  of  the  public  service.  They  were  supported  mainly  by  official 
recommendations  to  Congress  backed  by  the  approval  of  the  press  of 
the  country,  and  they  consisted  largely  of  increased  compensation  to 
those  in  the  civil  and  military  branches  of  the  public  service. 

In  addition  to  the  demands  for  increased  appropriations  for  the  es- 
tablished public  service  came  the  demand  for  the  authorization  and 
establishment  of  many  new  services  and  new  activities  upon  the  part 
of  the  Federal  Government.  Many  of  these  were  wholly  without  the 
constitutional  functions  of  the  Federal  Government.  Demands  of  this 
character  are  rapidly  increasing.  They  are  the  result  of,  and  are  sup- 
ported by,  a  general  tendency  throughout  the  country  to  increase  the 
power  of  the  Federal  Government  where  the  exercise  of  that  increased 
power  would  relieve  the  States  and  private  interests  of  the  expense  in- 
cident thereto.  These  demands  come  from  all  of  the  States,  but  more 
particularly  from  the  States  south  of  Mason  and  Dixon's  line.  The 
many  bureaus  and  offices  of  the  Executive  Departments  here  at  the  seat 
of  Government  are  always  eager  to  take  on  new  services  and  the  exer- 
cise of  new  powers  whenever  there  arises  among  the  States  or  the  people 
of  any  section  of  the  country  a  demand  that  they  should  do  so.  Demands 
of  this  character  were  greater  at  this  session  of  Congress  than  ever  be- 
fore, and  they  may  be  expected  to  increase  in  the  future  unless  the  exec- 
utive and  legislative  branches  of  the  Government  unite  in  resisting  prop- 
ositions for  the  exercise  of  these  extra  constitutional  powers  and  the 
consequent  encroachment  upon  the  revenues  of  the  Federal  Government. 


EFFORTS  FOR  ECONOMY  RECEIVED  SCANT  SUPPORT 

Because  of  the  nature  of  the  demands  and  the  sources  from  which 
these  demands  emanated,  prominent  Members  of  both  Houses  of  Con- 
gress, and  especially  on  both  sides  of  this  Chamber,  whose  voice  and 
influence  otherwise  would  have  been  most  potential  in  checking  these 
increased  appropriations,  sat  here  silent  or  aided  those  who  sought  their 
fulfillment.  I  am  not  criticising  anyone.  I  am  only  stating  for  the  record 
an  indisputable  fact.  I  do  not  deny  that  some  of  the  increases  made 
were  just,  but  I  do  say  that,  in  view  of  the  present  and  prospective  con- 
dition of  our  revenues,  these  increases  in  pay  and  increased  expenditures 


FINANCIAL   LEGISLATION  305 

on  account  of  newly  authorized  Federal  services  could  well  have  been 
postponed,  and  that,  too,  without  detriment  to  the  public  service. 

In  our  endeavor  to  check  and  keep  down  these  increased  expenditures 
and  increased  appropriations,  we  were  throughout  this  session  without 
support  either  from  the  public,  from  the  press,  from  the  minority,  or 
from  the  Executive  Departments  of  the  Government.  The  increased 
appropriations  of  more  than  $43,000,000  on  account  of  the  Army  and 
Navy,  or  for  preparation  for  war  to  the  end  that  we  may  have  peace, 
were  not,  in  the  judgment  of  many,  necessary,  and  yet  this  increase  was 
not  as  great  as  the  amount  demanded.  The  demand  for  these  enormous 
increases  in  war  expenditures  did  not  originate  with  the  representatives 
of  the  people.  It  originated  elsewhere,  and  was  supported  largely  by 
a  misdirected  public  sentiment,  to  such  an  extent  that  a  majority  of  this 
House  and  a  majority  in  the  other  branch  of  Congress,  including  Rep- 
resentatives of  both  political  parties,  supported  them  because  they  did 
not  dare  oppose  them,  while  those  who  did  oppose  them  were  restricted 
in  their  efforts  by  the  meaningless  filibuster  by  the  minority. 


ANALYSIS  OF  APPROPRIATIONS 

The  history  of  the  appropriation  bills  for  the  session,  which  I  will 
print,  shows  in  detail  and  in  aggregates  the  estimates  of  appropriations 
submitted  to  the  Congress;  the  bills,  as  reported  by  the  House  com- 
mittees, as  passed  by  the  House,  as  reported  by  the  Senate  committees, 
as  passed  by  the  Senate,  and,  finally,  as  they  became  laws  after  the  differ- 
ences between  the  two  Houses  were  reconciled  in  conferences ;  and  also 
for  purposes  of  comparison  the  appropriations  made  for  1908  are  shown. 

The  estimates  submitted  to  Congress  by  the  executive  as  a  basis  for 
the  appropriations  made,  including  regular  annual  expenses,  deficiencies, 
miscellaneous,  and  permanent  charges,  amounted  to  $1,079,449,288.96, 
or  an  excess  over  the  total  of  all  appropriations  as  finally  approved  by 
Congress  during  this  session  of  $70,644,394.39,  and  $158,651,145.16 
excess  over  all  appropriations  made  at  the  last  session  of  Congress. 

The  twelve  regular  annual  appropriation  bills  for  1909,  as  passed  by 
the  House,  appropriated  only  $743,907,820.97.  The  last  sum  is  a  reduc- 
tion under  the  regular  estimates  submitted  to  Congress  at  the  beginning 
of  the  session  of  $98,847,172.87. 

Adding  to  the  latter  sum  the  additional  estimates  submitted  to  Con- 
gress since  the  session  began,  and  carried  in  the  table  under  estimates 
as  miscellaneous  at  $25,500,000,  a  total  reduction  by  the  House  is  shown 
in  estimates  for  the  ordinary  operating  expenses  of  the  Government  of 
$124,347,172.87. 

The  Senate  passed  the  twelve  regular  annual  appropriation  bills  by 

20 


306 


AMERICAN   FEDERAL   GOVERNMENT 


increasing  them  over  what  they  carried  as  passed  by  the  House  to  the 
amount  of  $73>453>553-76- 

The  twelve  regular  annual  appropriation  bills  as  finally  enacted 
appropriate  — 

Less  than  the  estimates,  including  additional  or  miscellaneous  esti- 
mates, $73,640,368.04; 

More  than  as  passed  by  the  House,  $50,706,804.83 ; 

Less  than  as  passed  by  the  Senate,  $22,746,748.93 ;   and 

More  than  the  regular  appropriation  acts  for  the  current  fiscal  year 

$36>85°,7OI-53- 

The  grand  total  of  all  appropriations  made  at  this  session,  including 
the  regular  annual  bills,  deficiencies,  miscellaneous,  and  permanents, 
exceed  those  of  last  session  by  $88,006,750.77. 

A  comparison  of  each  of  the  general  appropriation  bills  and  other 
general  titles  of  appropriations  with  those  of  the  last  session  of  Congress 
is  shown  in  the  following  table: 

DIFFERENCES  IN  THE  APPROPRIATION  MEASURES  OF  THIS  SESSION,  COM- 
PARED  WITH  THOSE   OF   THE  LAST   SESSION   OF    CONGRESS 


Title  of  Bill 

Increase 

Reduction 

Agriculture     

$2,224,816.00 

Army   

16,747,664.86 

Diplomatic  and  consular      

485,130.19 

District  of  Columbia 

$322,020.78 

Fortifications 

2  4IQ  I  34  OO 

Indian 

871,728.28 

Legislative 

7O7  487.20 

Military  Academy 

1,084,068.55 

Navy 

23  703,  077-07 

Pension 

16,910,000.00 

Post-office   .            .... 

10,871,199.00 

River  and  harbor  (none  this  session)  . 
Sundry  civil    

2,168,101.92 

37,108,083.00 

Deficiencies     

44,586,974.74 

Miscellaneous     

2,261,099.38 

Permanents     

4,307,97  5.12 

Total      

127,  3Q3,  $60.  38 

39,386,809.61 

39,386,809.61 

Net  increase 

88  006  7^0.77 

DEFICIENCIES  IN  APPROPRIATIONS  NOT  LARGE 

The  total  appropriations  made  apparently  on  account  of  deficiencies 
at  this  session,  amounting  to  $56,995,973.65,  exceed  the  amount  of  the 


FINANCIAL   LEGISLATION  307 

last  session  by  $44,586,974.74.  This  unusual  sum  is  due  not  to  any 
violation  of  the  antideficiency  legislation  so  recently  enacted,  or  to  ill- 
advised  or  inadequate  appropriations  made  last  session,*  but  is  more 
than  accounted  for  by  the  sum  of  $12,466,750  for  public  buildings  au- 
thorized at  this  session,  and  by  two  other  sums,  one  of  $10,000,000  for 
the  payment  of  pensions  required  on  account  of  the  law  passed  at  this 
session  to  increase  the  pensions  of  widows  of  soldiers,  and  another  of 
$12,178,900  to  continue  the  work  on  the  Panama  Canal.  At  the  last 
session  of  Congress  all  the  money  was  appropriated  that  was  asked  for 
or  that  could,  under  the  expectations  then  entertained,  be  expended 
during  the  current  fiscal  year  in  the  construction  of  the  canal;  but  the 
rapid  progress  under  the  splendid  organization  at  work  on  the  Isthmus 
made  it  necessary  to  supply  as  a  deficiency  in  the  current  appropriations 
the  sum  given  in  order  to  avoid  a  suspension  of  the  work. 

Deducting  the  three  sums  named,  together  with  $11,791,342  for  the 
Army  and  Navy  expenditures,  to  which  the  prohibitive  deficiency  legis- 
lation does  not  apply,  and  the  sum  left  for  deficiencies,  only  $10,558,981.65 
is  gratifyingly  small,  and  much  less  than  the  ordinary  deficiencies  for  any 
of  the  recent  years. 


RELATION  OF  EXPENDITURES  TO  WEALTH 

At  the  request  of  the  Committee  on  Appropriations  the  Director  of 
the  Census  has  recently  prepared  and  furnished,  for  their  information, 
tables  showing  the  actual  expenditures  of  the  Federal  Government  from 
1791  to  1907,  by  fiscal  years,  and  by  four-year  periods  corresponding 
to  the  several  Administrations. 

In  connection  with  these  statistics  Director  North  has  furnished  an 
analysis  so  valuable  and  informing  to  all  who  are  interested  in  the  prob- 
lem of  governmental  expenditures  that  I  shall  ask  its  insertion  in  the 
Record  as  a  part  of  my  remarks. 

The  most  significant  fact  to  be  derived  from  an  inspection  of  the  rela- 
tionship of  expenditures  for  the  maintenance  of  government  to  the  ag- 
gregate wealth  of  the  nation  is  the  uniformity  for  a  long  series  of  years 
of  the  proportion  shown.  This  uniformity,  as  indicated  in  the  tables 
and  analysis,  exists  not  only  in  the  expenditures  for  the  Federal  Govern- 
ment, but  also  in  the  tax  levies  for  State,  municipal,  and  local  govern- 
ment. Practically  no  variation  whatever  appears  in  the  proportion  of 
expenditure  for  the  Federal  Government  per  $1,000  of  national  wealth, 
but  such  increase  as  appears  is  indicated  in  the  tax  levies  made  for 
government  other  than  Federal.  The  figures  presented  suggest  a  tend- 
ency to  increase  expenditures  for  State  or  local  government  more  rapidly 
than  for  the  Federal  Government. 

The  truth  of  this  apparent  tendency  is  confirmed  by  the  fact  that  the 


308  AMERICAN   FEDERAL   GOVERNMENT 

census  report  of  1890,  the  first  to  present  the  aggregate  payment  for  all 
expenditures  of  all  classes,  as  distinguished  from  mere  tax  levies,  for 
States,  counties,  cities,  and  minor  civil  divisions,  including  schools, 
amounted  to  $569,252,634,  or  $9.30  per  $1,000  of  national  wealth.  In 
1902,  however,  the  year  in  which  the  next  census  inquiry  upon  this 
subject  was  made,  the  aggregate  payment  for  expenditures  of  this  class 
had  nearly  doubled,  amounting  to  $1,156,447,085,  or  $12.80  per  $1,000 
of  national  wealth. 

In  general,  therefore,  it  appears  to  be  an  established  fact  that  while 
the  expenditures  for  the  maintenance  of  the  National  Government  have 
steadily  increased  during  the  whole  period  of  national  existence,  and 
latterly  much  more  than  I  believe  they  should,  they  have  maintained 
an  almost  uniform  proportion,  except  during  the  period  of  the  civil  war, 
in  comparison  with  each  $1,000  of  national  wealth;  but  that  the  expen- 
ditures made  for  the  maintenance  of  State  and  local  governments  of  all 
kinds  have  shown  a  decided  tendency  to  increase  in  proportion  to  each 
$1,000  of  national  wealth,  thus  reflecting  the  general  tendency  of  the 
age  and  of  the  nation,  as  wealth  increases,  to  make  more  liberal  ex- 
penditures for  the  maintenance  of  various  classes  of  government  and 
governmental  institutions. 

The  actual  per  capita  expenditure  for  the  maintenance  of  the  Federal 
Government  during  the  first  period,  from  1791  to  1796,  as  shown  by  the 
Census  Office,  was  $1.34.  It  would  be  natural  to  contrast  this  figure 
with  the  per  capita  of  annual  expenditure  for  the  last  fiscal  year,  amount- 
ing to  $8.91 ;  but  it  will  be  evident  upon  reflection  that  there  is  no 
comparison  possible  between  the  mere  per  capitas  themselves  without  con- 
sideration of  the  resources  of  the  nation  at  the  two  periods  mentioned. 
Except  in  time  of  war  or  in  periods  of  great  depression,  there  is  of  neces- 
sity in  every  nation  a  rough  relation  between  the  expenditures  for  the 
maintenance  of  government  and  the  ability  of  the  nation  to  furnish  such 
resources.  Unfortunately,  there  exists  no  information  concerning  the 
aggregate  wealth  of  the  United  States  at  the  beginning  of  the  nineteenth 
century.  The  earliest  data  upon  the  subject  was  collected  at  the  Seventh 
Census  in  1850. 


THIS  CONGRESS  DESERVES  PRAISE 

Mr.  Speaker,  in  conclusion  I  want  to  commend  this  Congress  as  it  is 
concluding  the  labors  of  its  first  session,  and  pay  tribute  to  the  courage 
it  has  manifested  in  its  acts  of  commission  as  well  as  those  of  omission. 
Whatever  the  unthinking  or  the  superficial  critic  may  now  say,  the  impar- 
tial and  nonpartisan  historian  will  hereafter  record  and  truthfully  state 
that,  in  the  affirmative  work  performed  and  in  contending  against  and 
successfully  resisting  unconstitutional  demands  upon  the  powers  and 


FINANCIAL   LEGISLATION  309 

the  treasury  of  the  Federal  Government,  the  work  of  no  previous  session 
is  comparable  with  the  work  of  the  first  session  of  the  Sixtieth  Congress. 
[Great  applause  on  the  Republican  side.] 

The  history  of  the  appropriation  bills  of  this  session  and  the  analysis 
of  public  expenditures  made  by  the  Census  Office  to  which  I  have  referred 
follow,  pp.  310-311. 


REVIEW    OF    APPROPRIATIONS     ON    BEHALF    OF    THE 

MINORITY1 

[It  is  customary  that  after  the  chairman  of  the  committee  on  appropriations 
has  made  his  statement,  he  is  followed  by  the  principal  member  of  the  minority 
on  that  committee  with  a  criticism  of  the  fiscal  policy  of  the  majority.] 

MR.  FITZGERALD  said: 

Mr.  Speaker:  Speaking  for  the  Democratic  members  of  the  Com- 
mittee on  Appropriations  and  at  their  direction,  I  desire  to  present  the 
following  review  of  our  appropriations  and  of  the  country's  financial 
condition : 

It  is  a  prodigious  task  to  examine  the  Departmental  estimates.  The 
gentleman  from  Minnesota  [Mr.  Tawney]  has  not  overstated  the  diffi- 
culties of  those  upon  whom  the  burden  is  placed.  The  country  would 
have  been  benefited  had  the  recommendations  of  the  committees  charged 
with  the  preparation  of  the  supply  bills  been  more  generally  heeded  by 
the  House.  The  importunities  of  those  outside  are  sufficiently  difficult 
to  resist,  without  having  the  membership  of  the  House  take  sides  against 
its  committees  on  questions  of  expenditure. 

The  gentleman  from  Minnesota  [Mr.  Tawney]  enunciated  a  new 
doctrine.  It  will  be  a  surprise  to  the  country  to  hear  his  explanations 
of  the  enormous  appropriations  of  this  Congress.  He  attributes  the 
wastefulness,  the  recklessness,  and  the  extravagance  of  his  own  party, 
in  complete  control  of  the  Government,  to  the  fact  that  the  Democratic 
minority  of  the  House  has  exercised  its  constitutional  right  to  call  the 
roll  upon  every  question  submitted  to  the  House.  The  purpose  of  the 
minority  was  to  center  the  attention  of  the  country  on  the  work  of  Con- 
gress, and  that  purpose  has  been  successfully  accomplished. 

Mr.  Speaker,  I  recall  when  the  naval  appropriation  came  back  from 
conference  it  was  not  due  to  the  vigilance  of  the  majority,  but  to  the 
vigilance  of  the  minority  that  it  was  discovered  that  the  conferees  on 
that  bill,  in  violation  of  all  rules  of  parliamentary  law,  had  inserted  a 
provision  carrying  a  large  sum  of  money.  It  was  not  the  action  of  the 
minority  that  prevented  that  report  being  rejected,  but  it  was  the  partisan 
action  of  a  Republican  Speaker  who  permitted  the  conference  report  to 

1  Congr.  Record,  May  30,  1908. 


3io 


AMERICAN   FEDERAL   GOVERNMENT 


HISTORY  OF  APPROPRIATION  BILLS,  FIRST  SESSION  OF  THE  SIXTIETH  CON- 

AND  APPROPRIATIONS  FOR 

[Prepared  by  the  clerks  to  the  Committees  on  Appropri- 


Title. 

Estimates, 
1909. 

Reported  to  the 
House. 

Agriculture     

$10,666,351.00 

89.755.833.75 
3,960,320.91 
13,798,126.35 
38,443,945.36 
8,219,272.87 
35,040,066.13 
977,087.87 
125,791,349.80 
151,043,000.00 
230,441,016.00 

$11,431,346.00 
85,007,566.56 
3,508,963.91 
9,561,449.35 
8,210,611.00 
8,020,597.87 

32.336>573-°° 
825,837.87 
103,967,518.43 
150,869,000.00 
220,765,392.00 

Army   

Diplomatic  and  consular      

District  of  Columbia    

Fortification 

Indian 

Legislative   etc. 

Military  Academy 

Navy 

Pension 

Post-Office              .... 

River  and  harbor  .......        .        .. 

Sundry  civil    

134,618,623.80 

roS.?^.  369-48 

Total 

842,754,993.84 

L  57,000,000.00 

740,220,225.47 
(   24,074,450.26 
2,025,500.00 
(    17,342,572.89 

Urgent  deficiency,  1908  and  prior  years     .... 
Additional  urgent  deficiency,  1908  and  prior  years 
Deficiency    1908  and  prior  years 

Total     

899,754,993.84 
25,500,000.00 

783,662,748.62 

Miscellaneous     

Total,  regular  annual  appropriations  .... 
Permanant  annual  appropriations      

925,254,993.84 
154,194,295.12 



Grand  total,  regular  and  permanent  annual 
appropriations      ... 

1,079,449,288.96 



Amount  of  estimated  revenues  for  fiscal  year  igoc, 
Amount  of  estimated  postal  revenues  for  fiscal  ye< 
Total  of  estimated  revenues  for  fiscal  year  190 

1  This  amount  includes  $17,806,645  to  carry  out  contracts  authorized 
of  the  Isthmian 

FINANCIAL   LEGISLATION 


GRESS  ;  ESTIMATES  AND  APPROPRIATIONS  FOR  THE  FISCAL  YEAR  1908-9, 
THE  FISCAL  YEAR  1907-8. 

ations  of  the  Senate  and  House  of  Representatives.'] 


Passed  the 
House. 

Reported  to  the 
Senate. 

Passed  the 
Senate. 

Law,  1908-9. 

Law,  1907-8. 

$11,508,806.00 
84,207,566.56 
3,508,963.91 
9,560,499.35 
8,210,611.00 
8,179,097.87 
32,302,913.00 
.    825,837.87 
105,405,768.43 
150,869,000.00 
222,355,892.00 

$11,642,146.00 
98,820,409.12 
3,967,805.91 
11,494,887.35 
11,510,187.01 
9,904,920.93 
32,945,631.00 
914,967.37 
112,984,799.88 
163,053,000.00 
229,027,367.00 

$12,152,406.00 
98,840,409.12 
3,597,  23Q-91 
ii,575,5i3-85 
12,116,187.01 
10,532,826.87 
32,965,631.00 
914,867.37 
123,115,659.88 
163,053,000.00 
229,706,367.00 

$11,672,106.00 
95,382,247.61 

3,577,463-9i 
10,117,668.85 
9,317,145.00 

9,253,347-87 
32,833,821.00 

845,634-87 
122,662,485.47 
163,053,000.00 
222,962,392.00 

$9,447,290.00 
78,634,582.75 
3,092,333-72 
10,440,598.63 
6,898,011.00 
10,125,076.15 
32,126,333.80 
1,929,703.42 
98,958,507.50 
146,143,000.00 
212,091,193.00 
37,108,083.00 
110,769,211.30 

106,972,864.98 

118,032,263.22 

118,791,275.72 

112,937,313.  221 

743,907,820.97 
23,725,188.25 
2,110,500.00 
17,344,322.89 

804,298,384.79 
24,083,267.12 
2,163,000.00 
18,374,811.43 

817,361,374.73 
24,083,500.48 
2,163,000.00 
18,385,316.88 

794,614,625.80 
24,050,125.48 
2,l63,OOO.OO 
30,782,848.17 

757,763,924-27 
I   12,408,998.91 

787,087,832.11 

848,919,463.34 

861,993,192.09 

^851,610,599.45 

3,000,000.00 

770,172,923.18 
738,900.62 

..... 

::::: 



854,610,599.45 
154,194,295.12 

770,911,823.80 
149,886,320.00 







1,008,804,894.57 

920,798,143.80 

$ 

558,000,000.00 
220,123,011.30 
878,123,011.30 

by  law  for  river  and  harbor  improvements  and  29,187,00  for  construction 
Canal  for  1909. 

312  AMERICAN   FEDERAL   GOVERNMENT 

come  up  under  a  motion  to  suspend  the  rules  instead  of  being  brought 
up  as  the  conference  report  on  this  bill  is  in  the  regular  and  orderly 
manner  that  enabled  the  Republican  conferees,  in  violation  of  the  rules, 
to  insert  and  retain  in  the  bill  an  item  that  was  never  considered  in  either 
House  of  Congress.  The  record  vote  upon  the  adoption  of  that  report 
will  show  that  more  Democrats  voted  to  reject  the  report,  because  of 
the  improper  action,  as  well  as  the  unjustifiable  extravagance  of  that 
bill,  than  did  Republican  Members  of  this  House.  I  challenge  the  chair- 
man of  the  Committee  on  Appropriations  now,  and  I  shall  yield  to  him 
to  answer,  to  name  a  single  item  of  large  appropriation  where  the  Record 
does  not  show  more  Democrats  recorded  against  it  than  there  are  Re- 
publicans recorded  against  it.  [A  pause.] 

The  gentleman  does  not  care  to  answer.  I  make  the  assertion  that  in 
every  instance  when  his  committee  was  overridden,  or  when  appropria- 
tions were  improperly  enlarged,  more  Republicans  voted  the  reckless 
appropriation  than  did  the  Democrats,  and  more  Republicans  in  pro- 
portion to  their  numbers  in  this  House  than  Democrats.  With  a  majority 
of  fifty-seven  Members  in  this  House  it  is  a  pitiable  spectacle  for  the  chair- 
man of  the  great  Committee  on  Appropriations  to  have  to  plead  that  the 
majority  of  fifty-seven  was  unable  to  prevent  the  minority  from  looting 
the  Treasury.  Despite,  Mr.  Speaker,  what  I  consider  an  extraordinary 
attempt  of  the  gentleman  from  Minnesota  to  place  the  sins  of  his  party 
upon  his  political  opponents,  and  despite  the  extraordinary  character 
of  his  statement  at  this  time,  we  of  the  minority  desire  to  pay  a  highly 
deserved  tribute  to  the  industry,  the  fearlessness,  the  patriotism  and 
the  high  purpose  which  have  characterized  the  labors  of  the  chairman 
of  the  Committee  on  Appropriations  [Mr.  Tawney].  It  has  been  a  source 
of  keen  gratification  to  have  worked  with  him,  knowing  that  his  only 
ambition  has  been  honestly  to  serve  the  country  and  to  conserve  the 
public  interests.  He  deserved  more  loyal  support  from  his  party  asso- 
ciates. Had  he  received  that  aid  and  cooperation  from  his  own  party 
which  should  have  been  freely  given,  all  honest  men  would  now  have 
great  cause  to  rejoice. 

The  Congress  is  now  about  to  adjourn.  This  session  has  been  the 
most  profligate  in  our  history.  Extravagance  has  run  riot ;  the  Treasury 
has  been  depleted;  the  public  money  has  been  shamefully  squandered. 

On  January  13  of  this  year  I  stated  that  "  preparations  have  been 
made  to  squander  the  public  treasure  with  a  lavishness  heretofore  un- 
known." The  record  of  this  session  is  in  complete  harmony  with  that 
declaration.  No  other  nation  in  the  civilized  world  could  be  so  reckless 
with  its  treasure  and  escape  disaster. 

The  responsibility  rests  with  the  Republican  party.  It  can  not  evade 
the  issue.  Every  energy  seems  to  have  been  concentrated  upon  the  task 
of  emptying  the  Treasury  and  of  making  imperative  the  issuance  of 
bonds  by  the  next  Administration  in  order  to  defray  the  ordinary  ex- 


FINANCIAL   LEGISLATION  313 

penditures  of  the  Government.  The  dreaded  handwriting  has  apparently 
been  seen  upon  the  wall,  and  the  Republican  party  is  demoralized  and 
shaken ;  it  can  not  shift  responsibility  to  a  helpless  minority. 

The  appropriations  for  the  next  fiscal  year  aggregate  the  enormous 
sum  of  $1,008,804,894.57. 

To  those  who  have  given  only  slight  attention  to  the  country's  finances 
the  statement  will  undoubtedly  be  startling;  when  contrasted  with  ex- 
penditures for  other  periods  in  our  history  amazement  at  Republican 
recklessness  quickly  gives  way  to  alarm  for  the  country's  future.  Ex- 
penditures have  been  authorized  as  if  the  wave  of  prosperity  were  still 
rolling  high  instead  of  having  broken,  as  is  has,  and  tumbling  into  the 
trough  of  a  severe  industrial  depression. 

Under  Cleveland  the  per  capita  appropriations  for  the  Army  for  four 
years  were  $1.35;  for  the  Navy,  $1.54;  for  fortifications,  20  cents;  the 
average  per  capita  for  the  four  years  for  such  service,  $3.90. 

Under  Roosevelt,  in  his  second  Administration,  the  per  capita  appro- 
priations for  the  Army  for  the  four-year  period  are  $3.66,  more  than  two 
and  one-half  times  the  amount  under  Cleveland;  for  the  Navy,  $4.91, 
more  than  three  times  the  amount  under  Cleveland;  for  fortifications, 
32  cents,  more  than  50  per  cent  increase  over  Cleveland,  and  the  average 
per  capita  cost  for  the  three  services  under  Roosevelt  is  $8.90,  two  and 
one-fourth  times  as  great  as  under  Cleveland. 

The  appropriations  for  the  Army  for  the  next  fiscal  year  are 
$16,747,664.86  more  than  for  the  present  fiscal  year.  It  has  already 
been  pointed  out  by  the  gentleman  from  Virginia  [Mr.  Hay]  that 
$3,000,000  additional  will  be  required  next  year  to  meet  the  demands  of 
the  service,  so  that  in  reality  the  Army,  without  the  addition  of  a  single 
man,  will  cost  at  least  $19,747,664.86  more  next  year  thaa  during  this 
year. 

The  appropriations  for  the  Navy  for  next  year  are  $23,703,977.97 
more  than  for  the  present  year.  So  that  in  a  time  of  profound  peace  our 
military  establishments  will  cost,  including  the  $2,419,134  additional  for 
fortifications,  $45,870,776.83  more  next  year  than  for  the  current  year. 
This  increase  in  one  year  is  practically  the  total  amount  appropriated  in 
1894  to  maintain  the  Army  and  Navy,  to  wit,  $46,329,701.16. 

In  other  words  the  entire  expenditure  for  the  Army  and  Navy  only 
fourteen  years  ago  is  equalled  now  by  the  increase  in  a  single  year. 

In  1907  the  expenditures  for  the  British  army  were  $121,232,201.15, 
and  an  army  at  least  two  and  one  half  times  as  large  as  our  Army  was 
maintained. 

In  1907  the  expenditures  for  the  French  army  were  $138,707,340.23; 
for  the  German  army,  $176,842,187.20. 

For  the  British  navy  the  expenditures  were  $149,364,556.75;  for  the 
French  navy,  $62,732,182.88;  for  the  German  navy,  $63,165,747.40. 

These  nations  have  repeatedly  been  pictured  to  the  people  of  this  coun- 


314  AMERICAN   FEDERAL   GOVERNMENT 

try  as  staggering  under  the  burdens  of  militarism.  It  has  been  our  boast 
that  this  free  land  has  not  been  so  afflicted,  yet  our  expenditures  for  the 
two  military  services  for  the  next  year  will  be  practically  the  same  as 
those  made  by  the  great  military  nations  of  Europe. 

The  gross  receipts  of  the  United  States  for  1907  were  $846,725,329.62 ; 
of  Great  Britain,  $704,737,686.26;  of  Germany,  $617,941,200.80;  of 
France,  $715,883,610.08. 

Evidently  the  receipts  of  these  four  governments,  are  very  much  alike, 
and  the  expenditures  for  maintenance  of  military  establishments  not 
widely  different. 

In  a  report  prepared  by  the  Census  Bureau  for  the  Committee  on 
Appropriations  this  statement  is  made: 

In  the  fiscal  year  ending  June  30,  1907,  the  per  capita  expenditures  of  the 
United  States  National  Government  were  6.65  times  as  great  as  was  the  aver- 
age of  such  expenditures  during  the  six  years  of  Washington's  administration 
for  which  complete  reports  are  available.  National  expenditures  have  increased 
in  one  hundred  and  eleven  years  that  much  faster  than  the  population.  This 
increase  is  attracting  the  attention  of  statesmen,  newspaper  writers,  and  stu- 
dents of  public  affairs. 

It  may  be  that  the  increasing  expenditures  of  the  Federal  Government 
are  attracting  the  attention  of  the  persons  mentioned  in  this  excerpt. 
Evidently,  however,  it  has  completely  escaped  the  attention  of  every  re- 
sponsible official  of  the  administration  of  Theodore  Roosevelt.  [Applause 
on  the  Democratic  side.]  Surely  these  significant  facts  have  not  perme- 
ated the  recesses  of  the  White  House  nor  found  even  a  temporary  lodg- 
ment in  the  active  brain  of  the  President.  No  other  conclusion  can  satis- 
factorily be  reached ;  for  upon  no  other  theory  is  it  conceivable  that  the 
Administration  would  have  submitted  estimates,  as  has  been  repeatedly 
pointed  out  during  the  session,  at  least  $128,000,000  in  excess  of  the 
revenues  estimated  for  the  coming  fiscal  year.  Since  these  estimates 
were  submitted  to  Congress  the  country  has  been  afflicted  with  a  panic. 
The  business  and  industrial  depression  is  growing  rather  than  lessening. 
Yet  in  the  plethora  of  messages  to  the  Congress  from  the  Chief  Execu- 
tive there  has  not  been  a  single  warning  to  safeguard  the  interests  of  the 
people  by  resolutely  repelling  all  attempts  to  raid  the  Treasury.  Indeed, 
when  the  history  of  this  session  is  impartially  and  truthfully  written,  as  it 
will  be  some  day,  the  wielder  of  the  "big  stick"  will  be  pictured  in  heroic 
size  at  the  head  of  those  who,  openly  encouraged  or  secretly  abetted  by 
him,  have  successfully  rifled  the  people's  strong  box.  [Applause  on  the 
Democratic  side.] 

How  are  these  extraordinary  authorizations  to  be  met  ?  If  the  Treas- 
ury were  overflowing  and  money  unnecessarily  taken  from  the  people 
through  various  forms  of  taxation  were  being  withheld  from  the  channels 
of  trade,  it  might  be  sufficient  excuse  for  some  to  make  lavish  appropria- 


FINANCIAL    LEGISLATION  315 

tions.  Or  if  the  party  in  power  adopted  the  policy  of  the  tyrants  of  old 
and  expended  enormous  sums  upon  public  works  to  keep  the  unemployed 
from  awakening  to  the  truth  of  the  country's  position,  such  reasons  might 
be  urged  in  defense  of  these  appropriations. 

But  of  the  total  of  $1,008,804,894.57  appropriated  at  this  session  not  a 
single  dollar  is  to  be  spent  on  new  projects  for  the  improvement  of  water 
routes  and  harbors  and  but  $30,000,000  is  for  newly  authorized  public 
buildings. 

From  the  daily  statement  of  the  Treasury  Department  for  May  23, 
1908,  it  appears  that  the  excess  of  expenditures  over  receipts  for  the 

fiscal  year  to  and  including  that  day  was  $61,421,301.82. 

*  *  *  ##  *  *  # 

The  gentleman  from  Minnesota  [Mr.  Tawney]  does  not  prophesy  idly 
when  he  warns  his  associates,  as  he  has  on  several  occasions  during  the 
past  few  months,  that  within  the  next  fiscal  year  it  will  be  necessary  to 
issue  either  certificates  of  indebtedness  or  bonds  to  obtain  the  money  to 
pay  the  current  expenses  of  the  Government. 

It  would  appear  as  if  the  Republicans  were  preparing  to  repeat  their 
conduct  in  the  closing  months  of  the  Harrison  Administration  [applause 
on  the  Democratic  side]  of  preparing  the  plates,  as  was  done  by  Secretary 
Foster,  for  the  printing  of  bonds  for  use  by  a  Democratic  Administration 
because  of  Republican  folly.  [Applause  on  the  Democratic  side.] 

Mr.  Speaker,  in  striking  contrast  with  the  management  of  the  nation's 
finances  by  the  Republican  party  is  the  situation  in  Great  Britain  to-day. 
On  the  7th  of  this  month  the  budget  was  presented  to  the  House  of  Com- 
mons by  the  premier,  Mr.  Asquith,  acting  for  the  chancellor  of  the  ex- 
chequer. A  perusal  of  his  speech  would  be  of  incalculable  benefit  "to 
every  Member  of  this  House.  Whatever  opinions  may  be  entertained  of 
the  British  system  of  government,  the  conduct  of  its  finances  can  not  do 
other  than  elicit  admiration. 

Mr.  Asquith  pointed  out  that  in  presenting  the  budget  a  year  previ- 
ously he  had  estimated  the  revenues  for  the  fiscal  year,  ending  March  31, 
1908,  at  about  $765,000,000  and  provided  for  the  expenditure  of 
$762,510,000.  The  revenue  had  actually  been  $782,690,000,  $17,000,000 
in  excess  of  his  estimate,  and  the  actual  expenditures  $759,060,000,  about 
$3,000,000  less  than  provided.  As  a  result  at  the  end  of  the  year  there 
was  a  surplus  of  receipts  over  expenditures  of  $20,000,000  and  the  public 
debt  had  been  reduced  $85,000,600.  Highly  impressive  when  con- 
trasted with  the  labors  of  the  Republican  party,  which  produces  a  deficit 
this  year  of  $78,000,000,  and  then  in  the  face  of  falling  revenues  is  asked 
by  the  executive  officials  to  appropriate  at  least  $128,000,000  more  than 
the  estimated  revenues  and  actually  appropriates  $223,000,000  more 
than  the  reasonably  anticipated  revenues,  and  then  the  gentleman  from 
Minnesota  [Mr.  Tawney]  puts  the  blame  on  a  Democratic  filibuster  at 
this  time !  [Applause  and  laughter  on  the  Democratic  side.] 


3i6  AMERICAN   FEDERAL   GOVERNMENT 

The  estimated  revenues  of  the  British  Government  for  the  next  fiscal 
year,  as  pointed  out  by  Mr.  Asquith,  are  $788,850,000;  the  expenditures 
provided  aggregate  $764,345,000,  a  surplus  of  about  $25,000,000.  With 
this  surplus  revenue  it  is  proposed  to  remove  certain  annoying  stamp 
taxes,  to  initiate  a  system  of  old-age  pensions,  to  reduce  the  tax  on  sugar 
i  farthing  a  pound,  with  a  consequent  loss  of  revenue  of  $17,000,000,  so 
as  to  afford  some  relief  to  the  masses  from  the  burdens  of  taxation,  and 
still  have  a  surplus  of  receipts  over  expenditures  available  for  unforeseen 
contingencies. 

With  estimated  revenues  practically  identical  with  our  probable  reve- 
nues—  Great  Britain,  $788,850,000;  United  States,  $785,000,000  — 
Great  Britain  will  support  an  army  three  and  one-half  times  as  large  as 
our  Army,  and  a  navy,  estimating  by  the  number  of  men,  about  three 
times  as  large  as  our  Navy ;  will  initiate  a  system  of  old-age  pensions,  will 
apply  about  $75,000,000  to  the  reduction  of  its  debt,  will  reduce  substan- 
tially the  tax  upon  sugar,  a  universally  used  foodstuff,  and  still  have  a 
surplus  of  receipts  available  for  contingencies,  while  the  United  States 
proposes  to  expend  $223,000,000  in  excess  of  its  probable  revenues,  with 
military  establishments  only  one-third  as  large  as  Great  Britain,  and 
without  relieving  the  people  from  a  single  dollar  of  taxation. 

It  is  little  to  be  wondered  that  the  British  premier  exultantly  declared 
that- 

When  people  talk  about  the  demands  of  democracy,  I  may  be  allowed  to 
say  that  there  is  not  a  more  credible  chapter  in  the  annals  of  democratic  finances 
than  that  which  records  the  fact  that  during  three  years,  with  a  passionate 
desire  for  diminution  of  expenditure  and  for  the  mitigation  of  popular  burdens, 
there  has  been  the  application  of  the  enormous  sum  of  between  thirteen  and 
fifteen  millions  (sterling)  a  year  out  of  taxation  to  redeem  the  principal  of  our 
national  debt. 

Mr.  Speaker,  while  I  have  not  as  much  admiration  for  the  British 
Government  as  for  our  own,  I  can  not  withhold  my  admiration  for  the 
manner  in  which  their  finances  are  conducted,  particularly  when  con- 
trasted with  the  Republican  party's  Administration  of  this  Government. 

Within  the  last  few  days  there  seems  to  have  been  an  awakening  on  the 
Republican  side  of  the  House.  Feeble  protests  have  been  made  against 
the  extent  of  appropriations  and  some  complaint  against  the  Senate  for 
presuming  to  add  to  the  appropriation  bills  as  passed  by  the  House. 

Mr.  Speaker,  with  the  exception  of  the  gentleman  from  Minnesota 
[Mr.  Tawney],  there  has  not  been  a  single  Republican  in  this  House  with 
sufficient  influence  to  be  considered  an  important  factor  in  the  delibera- 
tions of  this  body  who  has,  prior  to  this  week,  raised  his  voice  in  protest 
against  the  unjustifiable  extravagance  of  the  House  and  of  Congress. 
[Applause  on  the  Democratic  side.] 


FINANCIAL    LEGISLATION  317 


DIVIDED   AUTHORITY   AND    APPROPRIATIONS 

[The  following  extract  from  a  speech  by  Mr.  Livingston  on  July  2,  1906, 
brings  out  the  opinions  of  leading  men  upon  the  policy  of  distributing  the 
appropriation  bills  among  a  number  of  committees.] 

MR.  LIVINGSTON.  I  wish  to  bring  to  the  attention  of  Congress  the 
fact  that  the  division  of  appropriations  among  several  committees  was  a 
serious  mistake.  Mr.  Randall,  in  the  Forty-ninth  Congress,  on  a  report 
on  this  subject,  said: 

The  best  interests  of  the  people  require  that  the  subject  of  appropriations 
should  mainly  be  committed  to  the  charge  of  one  committee —  not  that  one 
set  of  men  is  abler  or  more  honest  than  another  set,  but  because  experience 
has  shown  it  is  the  safest  course  to  pursue.  Such  body  of  men  can  make  care- 
ful scrutiny  into  every  detail  by  itself,  and,  in  connection  with  others,  and  taking 
a  survey  of  the  whole  field  of  receipts  and  expenditures,  it  will  be  responsible 
to  the  House  to  see  to  it  that  the  latter  shall  be  reduced  to  an  economical  basis, 
and  kept  within  the  limits  of  the  public  revenue. 

If,  in  place  of  the  responsibility  and  certainty  of  keeping  appropriations 
within  economical  limits,  we  are  to  inaugurate  a  system  of  making  appropria- 
tions by  many  committees,  without  regard  each  to  the  other  or  the  amount  of 
money  involved,  increased  expenditures  will  ensue,  and  the  party  in  power  and 
responsible  for  the  control  of  legislation  in  this  House  will  be  held  to  strict 
account  by  the  people. 

If  you  undertake  to  divide  all  the  appropriations  and  have  many  committees 
where  there  ought  to  be  but  one,  you  will  enter  upon  a  path  or  extravagance 
you  can  not  foresee  the  length  of  or  the  depth  of,  until  we  will  find  the  Treasury 
of  the  country  bankrupt. 

Mr.  Garfield,  of  Ohio,  said: 

It  is  a  fact  within  the  experience  of  every  Member  who  has  been  here  long, 
that  the  Committee  on  Appropriations  always  finds  itself  confronted  with  a 
demand  from  each  of  the  committees  having  a  special  subject  in  charge  for 
larger  appropriations  than  the  Committee  on  Appropriations  think  should  be 
made.  There  never  was  a  time,  within  my  knowledge  since  I  have  been  here, 
when  the  Committee  on  Military  Affairs  did  not  resist  the  tendency  of  the 
Committee  on  Appropriations  to  cut  down  the  appropriations  for  the  Army. 
The  Committee  on  Naval  Affairs  has  always  been  found  resisting  the  reduc- 
tion of  the  naval  appropriation  bill.  For  this  reason,  I  say  that  if  each  of 
these  several  committees  had  charge  of  getting  up  the  appropriation  bills  on 
these  several  subjects,  the  amount  of  the  bills  would  be  very  large ;  they  would 
outgrow  the  grasp  of  the  House,  and  there  would  be  no  unity  in  the  appropria- 
tions of  public  money. 

I  do  say,  sir,  without  the  slightest  question  in  my  own  mind  of  the  truth  of 
the  statement,  that  the  scattering  of  these  appropriations  as  suggested  by 
gentlemen  here  will  be  absolutely  breaking  down  all  economy  and  good  order 
and  good  management  of  our  finances.  It  cannot  be  otherwise. 


318  AMERICAN   FEDERAL   GOVERNMENT 

Senator  Beck  said : 

The  Agricultural  Committee  will  frame  the  law  and  vote  all  the  money  they 
can,  and  no  man  not  on  that  committee  will  know  anything  about  it.  So  of  the 
Post-Office  Committee,  so  of  the  Naval  Committee,  so  of  the  Military  Com- 
mittee, so  of  the  District  of  Columbia  Committee.  They  become  autocrats, 
not  only  in  the  framing  of  the  law,  but  in  the  appropriation  of  the  people's 
money  to  carry  it  out;  and  outside  of  that  committee  room  no  man  can 
get  the  information  to  enable  him  to  contradict  what  they  say  if  they  are 
wrong;  and  they  are  selected  because  they  are  special  friends  of  the  Depart- 
ment they  are  appointed  to  represent;  for  each  Secretary  ought  to  have 
men  he  can  trust,  before  whom  he  can  present  the  wants  of  his  Department 
here. 


Senator  Sherman  said: 

Sir,  I  would  not  do  anything  at  all  to  weaken  the  restraint  or  power  of  the 
Committee  on  Appropriations.  I  believe  that  it  is  necessary,  as  my  friend 
from  Vermont  says,  to  bring  all  the  items  of  expenditures  for  the  nation  under 
the  eye  and  control  of  one  committee,  so  that  they  may  limit  the  amount  of 
expenditures. 

******** 
Senator  Hale  said: 

I  know  from  my  own  experience  that  the  tendency  of  the  mind  of  a  member 
of  either  of  the  other  committees  calling  for  appropriations  each  year —  the 
Military  or  Naval  Committee  (I  will  speak  of  the  latter  because  I  have  had 
service  upon  that  committee)  —  is  to  gain  all  the  power  in  appropriating  money 
possible,  and  connected  with  that  is  the  unerring  result  of  desiring  to  have  the 
power  to  appropriate  more  money.  There  has  never  been  any  exception  to 
that.  I  think  few  Senators  will  dispute  the  statement  that  if  all  the  business  of 
the  Committee  on  Appropriations  was  taken  from  it  and  given  to  the  several 
committees  we  should  then  be  confronted  with  a  general  scramble  upon  the 
part  of  each  committee  for  more  money. 

Mr.  Cannon  said: 

That  committee  having  the  exclusive  power  to  propose  legislation,  and  also 
to  report  the  appropriations  for  the  service,  would  be  an  autocratic  committee 
without  any  check  upon  it  with  any  other  committee  of  the  House.  Now,  I 
undertake  to  say  when  you  give  a  committee  of  that  kind  that  kind  of  power  — 
you  may  put  my  friend  from  Maine  [Mr.  Reed]  upon  it,  or  you  may  put  my 
friend  from  New  York  [Mr.  Hiscock]  upon  it,  or  the  gentleman  from  West 
Virginia  [Mr.  Gibson],  or  the  gentleman  from  Pennsylvania  [Mr.  Randall]  — 
they  might  make  fair  appropriations  this  session,  and  possibly  next  session, 
but,  as  the  years  roll  around,  so  sure  as  the  sun  rises,  that  committee  having 
exclusive  jurisdiction  of  legislation  and  appropriations  for  that  subject  would 
abuse  its  jurisdiction  and  magnify  its  department. 


FINANCIAL   LEGISLATION 


319 


Why,  Mr.  Speaker,  when  you  come  to  select  the  committees  which 
are  to  have  charge  of  the  business  of  the  War  Department,  or  the  Navy 
Department,  or  the  Post  Office  Department,  I  take  it,  sir,  that  it  will 
be  your  duty  to  select  able  men  that  have  a  knowledge  of  these  different 
Departments ;  and  not  only  that,  but  men  who  are  friendly,  if  you  please, 
to  the  Navy  of  this  country,  to  the  Army  of  this  country,  and  to  the  Post 
Office  Department.  You  ought  not,  sir,  to  pick  out  enemies,  and  I  do 
not  believe  you  would  do  so.  So  when  you  have  placed  the  power  in  the 
hands  of  the  friends  of  these  various  Departments,  and  given  them  this 
exclusive  jurisdiction  of  legislation  and  of  appropriations,  you  have  at 
once  this  abuse  ready  to  come  into  this  House  and  from  Congress  to 
Congress  to  run  riot,  blossoming  and  bearing  the  fruit  of  bad  legislation 
and  inordinate  appropriations. 

How  truly  did  this  our  present  Speaker  predict  the  conditions  of  to- 
day. These  committees  that  have  power  to  legislate  and  appropriate 


APPROPRIATIONS  FOR  FISCAL  YEARS  1898  AND  1907 


Tide 

Appropriations 
made  for  fiscal 
year  1898,  the 
first  full  fiscal 
year  under  Mr. 
McKinley's  Ad- 
ministration 

Appropriations 
made  for  fiscal 
year  1907,  under 
Mr.  Roosevelt's 
Administration 

Agricultural 

$3  182  902  oo 

So  032  040.00 

Army 

23  120  344  3O 

71  81  7  165  08 

Diplomatic  and  consular 

I  60?   308.76 

3  ooi  004.17 

District  of  Columbia            .                            .    . 

6,186,991  .06 

10,138  692.16 

Fortifications      .        .        .... 

9,  C  17  141.00 

C,  053,003.00 

Indian     

7,674,120.80 

9260,300-08 

Legislative,  etc  

21,690,766.90 

29,741,019.30 

Military  Academy     

479,572.83 

1,664,707.67 

Navy 

Pensions 

141  263  880  oo 

140  245  500  oo 

Post-office 

ne  66?  338  7? 

IQI  605  008.75 

River  and  Harbor  (including  amounts  in  sundry 
civil,  deficiency  and  special  acts)     ... 

20  832  412  91 

Sundry  civil    ..                 

34  4QO  37O  47 

08,274,  574-32 

Deficiencies    

0.006  417.34 

39,1  19,246.62 

Total 

712  106  981.32 

Miscellaneous 

74Q  O?7  OO 

28  000,000.00 

Total  regular  annual  appropriations  .    .   . 
Permanent  annual  appropriations  (estimates) 

408,656,859.30 
120,078,220.00 

740,106,981.32 
140,076,320.00 

Grand  total 

^28  73  ?  O7Q  3O 

880  183  301  32 

320  AMERICAN   FEDERAL   GOVERNMENT 

are  merely  the  representatives  of  specific  Departments,  and  as  foretold 
by  Mr.  Cannon  are  "  bearing  fruit  of  bad  legislation."  If  this  pernicious 
practice  can  not  be  changed,  our  appropriations  will  continue  to  "run 
riot."  Mr.  Cannon  at  that  time  suggested  that  all  conferees  between 
the  House  and  Senate  upon  money  bills  should  be  selected  from  the  ap- 
propriations committees  of  the  House  and  Senate,  with  power  to  cut 
out  unnecessary  appropriations  and  scale  down  extravagant  ones.  Con- 
gress and  the  country  need  not  look  for  retrenchment  in  expenses  or  ap- 
propriations under  the  present  methods.  Each  of  these  committees 
with  power  to  legislate  and  appropriate  will  continue  to  strive  for  the 
advantage  to  their  particular  Departments  in  the  disbursement  of  the 
Government's  revenue. 


DEBATE   ON   AN   APPROPRIATION  BILL 

[Under  the  rules  of  the  House  the  general  appropriation  bills  are  not  allowed 
to  contain  any  new  legislation,  but  only  appropriations  for  services  already 
provided  for  by  former  laws.  In  1906,  this  rule  was  put  in  operation  against 
various  appropriation  bills  in  order  to  keep  them  within  proper  limits.  It  has 
been  the  practice  of  the  House  to  allow  much  legislation  of  this  kind  to  go 
through  without  objection  by  unanimous  consent,  but,  of  course,  the  objection 
of  even  a  single  member  is  sufficient  under  the  rules  to  throw  out  an  appropria- 
tion for  which  there  is  no  legal  warrant.  In  this  manner  it  was  easy  for  the  mem- 
bers on  the  Committee  on  Appropriations  to  exercise  a  certain  control  over  the 
bills  brought  in  by  other  committees,  through  their  right  of  objection  as  in- 
dividual members.  But  when  on  March  23,  1906,  the  Committee  brought  in 
one  of  its  own  bills,  the  Legislative  and  Judicial  Appropriation  Bill,  certain 
of  the  members  of  the  House  took  it  upon  themselves  to  enforce  the  rules 
against  the  Committee  on  Appropriations  itself.  Item  after  item  was  ob- 
jected to  and  under  the  rules  of  the  House  a  great  many  sections  were  stricken 
out.  The  attitude  of  the  members  and  the  committee  is  brought  out  in  the 
following  extract  from  the  debate  of  March  23,  which  also  illustrates  the 
opinions  held  by  some  members  upon  the  rules  of  the  House.] 

MR.  PRINCE.  I  will  not  oppose  any  measure  which  has  for  its  purpose 
the  betterment  of  the  service  of  the  United  States  in  any  of  its  branches ; 
but  under  the  rules  of  this  House  this  is  no  way  to  legislate.  No  man 
in  this  House  can  tell  how  these  rolls  may  be  padded.  There  is  no  means 
of  getting  at  it.  We  may  be  criticised  by  some  for  doing  what  we  are 
doing,  but  we  want  to  know  how  these  men  are  placed  on  the  rolls ;  we 
want  to  know  by  what  authority  of  law  they  are  placed  there,  and  some 
of  us  have  stood  here  under  the  rules  making  objection;  and  in  every 
instance  practically  where  we  have  made  objection  under  the  rules, 
Chairman  after  Chairman  occupying  the  position  that  you  now  occupy, 
Mr.  Chairman,  has  held  in  accordance  with  the  rules  of  the  House. 
Why  criticise  us  for  doing  our  duty? 


FINANCIAL   LEGISLATION  321 

I  am  not  here  criticising  gentlemen  of  the  committee,  but  I  am  only 
asking  them  to  live  under  the  rules  that  they  want  us  to  live  under.  The 
rules  of  this  House  are  invoked  time  and  again,  and  when  the  time 
comes  it  is  a  rare  instance  for  me  to  oppose  the  rules.  More  than  ten 
years  have  I  been  in  this  House,  and  at  no  time  when  a  rule  has  been 
brought  in  along  the  lines  of  party  policy  have  I  ever  refused  to  stand 
by  it.  I  have  stood  for  the  rules  of  this  House  and  stand  by  the  rules 
to-day,  and  I  am  insisting  upon  the  rule ;  and  the  gentleman  very  prop- 
erly says  that  these  provisions  are  subject  to  the  rule,  and  he  makes  no 
objection  to  the  point  of  order.  Then  what  is  his  answer  for  bringing 
them  in  here  when  he  knows  that  they  are  contrary  to  the  rules  of  this 
House  ? 

Mr.  TAWNEY.  Mr.  Chairman,  I  wish  to  make  an  observation  in 
reply  to  the  gentleman  from  Illinois  [Mr.  Prince],  who  attempts  to 
justify  his  course  and  the  course  of  his  colleague  from  Georgia  [Mr. 
Hard  wick]  in  their  opposition  to  certain  provisions  in  this  bill  upon  the- 
ground  that  under  the  rules  of  the  House  the  House  can  not  consider  a 
provision  in  an  appropriation  bill  providing  for  the  salaries  of  the  clerks 
that  are  engaged  in  carrying  on  the  public  service.  Now,  if  you  will 
follow  to  its  logical  conclusion  the  position  of  the  gentleman  from  Illinois, 
this  House  for  the  next  five  years  would  have  no  time  to  do  anything 
else  than  to  take  up  in  the  several  Departments  the  necessity  for  legisla- 
tion, for  the  purpose  of  increasing  one  clerk  in  one  bureau  and  a  number 
of  clerks  in  another  bureau,  and  in  another  division,  and  it  would  abso- 
lutely make  the  House  of  Representatives  ridiculous. 

The  course  which  the  Committee  on  Appropriations  has  followed  in 
this  bill  has  been  the  practice  ever  since  I  have  been  a  Member  of  this 
House,  which  has  been  fourteen  years.  When  the  departmental  officers 
submit  their  estimates  to  Congress  they  submit  an  estimate  not  only  for 
the  clerical  force  they  then  have  on  the  rolls,  but  if  the  growth  of  the 
service  in  their  respective  Departments  has  been  such  as  to  necessitate 
an  increase  in  that  force  that  increase  is  included  in  the  estimate,  and 
the  demand  for  it  is  investigated  by  whom?  Investigated  by  the  com- 
mittee that  reports  the  appropriation  for  carrying  on  that  service,  and 
if,  in  the  judgment  of  that  committee,  the  additional  clerical  force  is 
necessary,  the  committee  invariably  reports  in  its  legislative,  executive, 
and  judicial  appropriation  bill  the  necessary  increase  in  positions  and 
the  necessary  increase  in  salaries. 

There  is  no  other  way  to  provide  for  the  increasing  demands  of  the 
Departments  except  by  introducing  bills  for  the  increase  of  specific 
salaries  and  then  have  these  bills  go  to  the  respective  legislative  com- 
mittees ;  these  committees  consider  the  necessity,  and  then  bring  in  a  bill 
providing  for  an  increase,  say,  of  one  clerk  in  the  Post  Office  Department 
and  perhaps  one  or  two  clerks  in  the  Civil  Service  Commission,  or  an 
increase  in  the  salaries  or  an  increase  in  the  number  of  chief  clerks,  etc. 

21 


322 


AMERICAN   FEDERAL   GOVERNMENT 


I  say  the  enforcement  of  this  rule  as  interpreted  makes  the  House 
absolutely  ridiculous.  I  am  not  finding  any  fault  with  the  rulings  of  the 
Chair,  but  when  these  gentlemen  make  their  points  of  order  and  ex- 
planations are  made  for  the  necessity  for  the  changes  in  current  law  or 
the  reasonableness  of  the  increase  in  salaries  that  have  been  reported, 
even  though  these  changes  result  in  an  aggregate  decrease  in  the  ex- 
penditure of  the  public  money,  they  nevertheless  are  not  satisfied. 

It  is  not  to  enforce  the  rules  of  the  House,  it  is  not  to  protect  the  House 
against  any  violation  of  its  rules,  that  this  policy  has  been  inaugurated 
by  these  gentlemen ;  that  is  not  their  motive.  If  it  were  they  would  accept 
the  statements  made  here  on  the  floor  as  to  the  necessity  for  these  changes 
in  the  interest  of  better  administration  and  in  the  interest  of  economy. 

Mr.  Chairman,  we  may  as  well  face  this  situation  now  as  any  time. 
If  this  rule  is  to  be  enforced,  then  more  than  one-half  of  the  provisions  of 
this  bill  will  have  to  go  out.  More  than  one-half  of  the  provisions  of  a 
•legislative  bill  that  has  been  reported  to  this  House  for  the  last  ten  years 
could  not  have  been  considered.  We  have  certain  provisions  in  this  bill 
where  clerks  were  employed  under  a  lump-sum  appropriation,  a  practice 
that  has  been  criticised  by  this  House,  and  the  Committee  on  Appropri- 
ations has  been  the  particular  object  of  that  criticism  for  not  bringing 
in  specific  appropriations  defining  these  places  and  salaries  to  be  al- 
lowed to  each  one  of  them. 

As  the  result  of  the  investigation  made  by  the  Committee  on  Appro- 
priations, in  three  or  four  instances  were  found  lump-sum  appropriations, 
in  almost  every  instance  we  find  that  where  the  head  of  a  Department  is 
employing  clerks  under  a  lump-sum  appropriation  the  salaries  are  a 
great  deal  higher  than  when  the  salaries  are  provided  for  specifically  in 
appropriation  bills.  As  the  result  of  the  changes  we  have  reported  to  the 
House  in  three  bureaus  a  reduction,  a  saving  to  the  Government,  of 
$12,511  is  accomplished.  But  under  the  policy  of  the  gentleman  from 
Illinois  [Mr.  Prince]  and  his  colleague  from  Georgia  [Mr.  Hardwick], 
if  their  policy  of  making  points  of  order  is  pursued  by  them,  it  is  abso- 
lutely impossible  for  this  House  to  effect  any  reform  or  any  reduction 
in  the  salary  or  any  improvement  in  the  public  administration  by  re- 
classification  or  otherwise,  for  the  reason  that  to  do  so  would  be  ob- 
noxious to  the  rule.  Similar  provisions  have  heretofore  been  reported 
from  the  Committee  on  Appropriations  in  this  same  bill,  but  they  re- 
mained in  the  bill  notwithstanding  they  were  obnoxious  to  the  rules. 
They  remained  in  the  bill  because  in  the  interest  of  good  administration 
and  in  the  interest  of  economy  there  was  no  man  on  this  floor  who  ob- 
jected to  the  enactment  of  provisions  of  that  kind.  Now,  no  matter  how 
great  the  economy  may  be,  no  matter  how  beneficial  these  reclassifica- 
tions  may  be  in  the  administration  of  public  affairs,  these  two  Members 
say  they  can  not  be  considered.  They  even  refuse  to  allow  this  House 
to  consider  any  one  of  these  proposed  changes.  If  they  were  acting  in 


FINANCIAL  LEGISLATION  323 

good  faith  they  would  at  least  permit  the  House  to  consider  propositions 
of  that  kind  when  they  are  informed  that  as  a  result  of  this  legislation 
we  are  saving  the  people's  money  and  improving  the  public  administra- 
tion of  our  public  affairs. 

Now,  if  these  provisions  did  not  suit  the  House,  or  any  Member  of 
the  House,  that  Member  has  a  perfect  right,  under  the  rules  of  the  House, 
to  amend,  if  he  desires  to  do  so.  If  the  salaries  which  have  been  reported 
here  are  in  excess  or  greater  than  what  they  think  they  ought  to  be,  they 
have  the  right  to  offer  an  amendment  if  they  see  fit  to  do  so.  I  speak  of 
this,  Mr.  Chairman,  merely  for  the  purpose  of  emphasizing  the  fact 
that  if  we  are  to  go  on  here  day  after  day  under  the  technical  policy  of 
these  gentlemen  I  want  the  country  to  know  who  is  responsible  for  it 
and  why  they  are  pursuing  the  course  that  they  are.  I  do  not  want  them 
to  give  it  out  to  the  country  that  they  are  actuated  by  motives  of  economy 
when  they  refuse  to  allow  this  House  to  consider  a  proposition  which 
results,  if  enacted  into  law,  in  saving  money  to  the  public  or  improving 
the  public  service.  Now,  they  have  a  perfect  right  —  any  Member  has 
a  right,  if  he  sees  fit  to  exercise  it  —  to  make  points  of  order  against  these 
provisions,  but  this  House  ought  to  remember  and  the  country  ought  to 
know  that  a  point  of  order  deprives  the  House  of  an  opportunity  to  con- 
sider whether  or  not  the  provisions  are  wise  or  unwise  —  whether  or 
not  they  would  result  beneficially  to  the  Government.  And  when, 
contrary  to  the  uniform  practice  of  this  House  of  considering  provisions 
of  this  kind  by  unanimous  consent,  the  country  will  know  that  these  men 
set  themselves  up  as  censors,  not  in  the  interest  of  good  administration 
or  in  the  interest  of  economy  —  when  the  country  knows  that  they  are 
depriving  the  House  of  an  opportunity  of  considering  provisions  in  the 
interest  of  economy  —  I  imagine  that  their  course  will  not  meet  with  that 
popular  approval  which  it  is  evident  they  hope  or  anticipate  it  will  by 
their  claiming  that  they  are  doing  this  for  that  purpose.  Why,  just  a 
few  minutes  ago,  as  a  result  of  their  policy,  they  have  made  it  necessary 
to  increase  the  public  expenditures.  They  have  by  their  policy  made  it 
impossible  for  us  to  improve  the  efficiency  of  one  of  the  branches  of  the 
Government.  Now,  Mr.  Chairman,  I  submit,  in  all  candor,  that  if 
this  policy  is  to  be  followed  out  we  may  as  well  proceed  with  the  reading 
of  this  bill,  have  everything  stricken  out,  whether  it  reduces  or  does  not 
reduce  public  expenditure,  and  then  rewrite  the  bill  in  the  language  of 
the  current  legislative  bill  and  let  it  go  to  the  other  branch  of  Congress, 
where  these  proposed  reforms  and  changes  may  be  considered.  I  will 
not  say  that  there  is  any  purpose  or  intention  on  the  part  of  the  Com- 
mittee on  Appropriations  to  do  this,  because  it  is  not  necessary.  Those 
things  can  be  corrected  under  the  parliamentary  procedure  of  the  House, 
and  they  will  be,  but  it  will  involve  simply  going  over  this  bill  again.  It 
will  simply  involve  the  time  necessary  for  reconsidering  every  one  of 
these  provisions  which,  by  the  policy  of  these  gentlemen,  the  House  is 


324  AMERICAN   FEDERAL   GOVERNMENT 

now  deprived  of  the  opportunity  of  considering.  The  House  is  compe- 
tent to  determine  whether  these  changes  should  be  made  or  not.  The  plan 
proposed  by  the  gentleman  from  Illinois  [Mr.  Prince]  is  absolutely  im- 
practical. If  these  changes  are  not  right,  or  if  these  provisions  should 
not  be  enacted  into  law,  if  we  should  not  cut  down  the  forces  in  the  Exec- 
utive Departments  as  we  have  done  in  this  bill,  if  we  should  not  change 
around  and  reclassify  as  we  propose  in  this  bill,  it  is  a  matter  that  the 
House  can  by  a  majority  vote  determine.  But  the  attitude  and  the  policy 
of  these  gentlemen  is  to  deprive  the  House  of  the  opportunity  of  accom- 
plishing anything  of  this  kind. 

Mr.  PRINCE.  Mr.  Chairman,  I  ask  unanimous  consent  to  answer  in  a 
brief  time  the  speech  of  the  gentleman  from  Minnesota,  the  chairman 
of  the  Committee  on  Appropriations. 

The  CHAIRMAN.  The  Chair  is  ready  to  rule  on  the  point  and  will  do 
so,  and  then  submit  the  gentleman's  request.  The  Chair  sustains  the 
point  of  order.  The  gentleman  from  Illinois  asks  unanimous  consent  to 
proceed  for  five  minutes.  Is  there  objection.  [After  a  pause.]  The 
Chair  hears  none. 

Mr.  PRINCE.  Mr.  Chairman  and  gentlemen  of  the  House,  the  chair- 
man of  the  Committee  on  Appropriations,  the  gentleman  from  Minne- 
sota [Mr.  Tawney],  says  that  if  we  persist  in  asking  for  the  rules  of  the 
House  to  be  observed,  we  are  obstructionists ;  that  we  are  not  acting  in 
the  interests  of  economy;  that  this  bill  and  many  of  its  provisions  will 
fail,  and,  in  fact,  half  of  the  bill,  as  he  stated  before,  would  go  out  on  a 
point  of  order.  Now,  Mr.  Chairman,  in  the  first  place,  speaking  for 
myself  only,  I  have  not  made  a  point  of  order  against  any  reduction  of 
expenses  in  this  bill. 

Mr.  TAWNEY.     I  beg  the  gentleman's  pardon,  he  did. 

Mr.  PRINCE.     Wherein,  sir? 

Mr.  TAWNEY.     In  respect  to  the  Civil  Service  Commission. 

Mr.  PRINCE.  You  have  brought  in  a  bill  which,  you  say,  reduces  it, 
have  you  not? 

Mr.  TAWNEY.     Yes,  sir;  $2,590. 

Mr.  PRINCE.  Very  well.  In  the  first  instance,  let  us  see  what  it 
means.  On  page  34  I  have  asked  two  chiefs  of  divisions,  at  $2,000  each, 
be  stricken  out.  That  cannot  be  an  addition.  I  have  asked  twenty-two 
clerks  be  reduced  to  six  clerks.  That  cannot  be  an  addition.  I  have  not 
changed  any  provision  of  the  law.  Can  that  be  an  addition?  That  is 
subtracting,  not  an  addition.  On  page  35  I  have  asked  that  seven  clerks 
be  reduced  to  six.  Is  that  an  addition  ? 

Mr.  LITTAUER.  But  you  know  the  force  as  you  have  emasculated  it 
cannot  remain  so,  that  it  has  to  be  put  back  one  way  or  another,  else  the 
work  of  this  bureau  be  given  up. 

Mr.  PRINCE.  Is  it  possible  that  one  clerk  at  $1,000  can  disarrange 
the  entire  bureau? 


FINANCIAL   LEGISLATION  325 

Mr.  LITTAUER.    Your  statement  covered  more  than  one  clerk. 

Mr.  PRINCE.  Can  it  be  possible  that  two  examiners  who  heretofore 
have  never  existed  can  disarrange  the  entire  bureau  ? 

Mr.  LITTAUER.  The  work  that  these  examiners  are  designed  to  per- 
form has  been  going  on,  and  they  are  now  in  this  service. 

Mr.  PRINCE.  In  the  old  bill  there  were  none  of  them  there,  and  this 
Commission  has  existed  ever  since  when?  Will  the  gentleman  from 
Ohio  tell  me  when  the  first  civil-service  bill  was  passed? 

Mr.  GROSVENOR.     It  was  passed  in  1883. 

Mr.  PRINCE.  And  it  is  the  only  one  that  has  been  passed,  has  never 
been  modified  or  amended? 

Mr.  GROSVENOR.     Never. 

Mr.  PRINCE.  So  the  machinery  is  there  as  it  is  and  in  running  order 
and  now  I  say  and  deny  I  have  reduced  it.  Very  well,  what  else  ? 

Mr.  LITTAUER.  How  many  clerks  do  you  reduce  in  that  para- 
graph ? 

Mr.  PRINCE.    I  mean  I  have  not  increased  it ;  I  have  reduced  it. 

Mr.  LITTAUER.     Nine  clerks  in  one  paragraph. 

Mr.  PRINCE.    Six  clerks  in  one  paragraph.    Can  that  be  an  addition? 

Mr.  LITTAUER.  No;  but  you  render  it  incompetent  to  do  the 
work. 

Mr.  PRINCE.     I  will  answer  any  question  you  put  to  me. 

Mr.  LITTAUER.  We  might  be  able  to  get  along  without  the  whole 
force,  but  we  cannot  get  along  without  a  well-ordered  force. 

Mr.  PRINCE.  You  gentlemen  representing  the  Committee  on  Appro- 
priations have  declined  to  restore  the  old  law.  I  have  offered  an  amend- 
ment on  the  floor  of  this  House  to  restore  the  old  law,  and  you  decline  to 
do  it.  You  stand  here  and  cripple  the  service,  not  I. 

Mr.  TAWNEY.     Will  the  gentleman  yield? 

Mr.  PRINCE.     I  will. 

Mr.  TAWNEY.  As  a  result  of  your  point  of  order  you  have  been  recog- 
nized for  further  time. 

Mr.  PRINCE.  The  main  contention,  as  I  gather,  is  this:  The  gentle- 
men in  charge  of  the  bill  charge  that  we  are  invoking  the  rule  when  we 
ought  not  to  invoke  the  rule.  What  are  the  rules  for?  If  it  should  ap- 
pear to  the  country  that  here  is  a  great  body  of  386  Members  who  have 
rules  that  they  cannot  do  business  under,  it  may  be  suggested  in  the 
country  that  the  rules  ought  to  be  modified  in  a  way  so  that  the  expres- 
sions of  the  American  people  through  their  representatives  can  have  a 
voice  upon  the  floor  of  this  House.  [Applause.] 

And  I  trust  and  hope  that,  aside  from  the  discussion  of  this  bill,  it 
will  rivet  the  attention  of  the  country  upon  the  rules  of  this  House.  Tell 
us  what  they  can  do,  and  what  they  cannot  do.  And  in  the  coming  Con- 
gress, which,  in  my  judgment,  will  be  overwhelmingly  Republican,  we 
will  adjust  the  rules  in  a  way  that  things  will  be  carried  on  and  policies 


326  AMERICAN   FEDERAL   GOVERNMENT 

carried  out  in  accordance  with  the  wishes  of  the  people;  and  as  one  of 
their  representatives  I  am  perfectly  willing  to  stand  before  my  people, 
as  I  expect  to  this  fall,  and  give  an  account  of  what  I  am  doing  here  on 
the  floor  of  the  House  to-day.  I  have  no  question  what  the  result  will  be. 
Now,  if  you  want  to  bring  in  a  proposition  here  which  will  make  these 
various  propositions  in  order,  bring  it  in  and  let  us  vote  on  it. 
[Applause.] 

Mr.  UNDERWOOD.  Mr.  Chairman,  I  move  to  strike  out  the  last  word. 
I  listened  a  while  ago  to  a  speech  by  the  chairman  of  the  Committee  on 
Appropriations  in  reference  to  the  rules  of  the  House.  I  served  at  one 
time  on  the  Appropriation  Committee,  and  I  certainly  have  a  kindly 
feeling  for  the  committee,  and  I  am  sure  in  violating  the  rules  of  the 
House  the  general  Appropriation  Committee  of  this  House  have  often 
passed  meritorious,  economic,  and  good  legislation. 

I  do  not  think  there  is  any  doubt  about  the  fact  that  the  law  that  was 
written  on  the  statute  book  in  the  last  session  of  Congress  which  pro- 
hibited Department  officers  from  creating  deficiencies  was  a  good  law, 
an  economic  remedy ;  but  notwithstanding  that  it  is  a  fact  that  this  com- 
mittee has  written  good  law  on  the  statute  book  in  violation  of  the  rules 
of  this  House,  I  do  not  think  it  lies  within  the  mouth  of  the  great  Com- 
mittee on  Appropriations,  or  any  other  committee,  to  come  into  the  House 
of  Representatives  and  attempt  to  justify  themselves  in  the  violation  of 
the  rules  of  the  House.  We  all  violate  the  rules  of  the  House  every  now 
and  then,  and  ask  unanimous  consent  to  do  so,  but  when  we  do  it  it  ought 
to  be  understood  that  we  do  it  with  the  unanimous  consent  of  every 
Member  of  this  House. 

Mr.  Chairman,  the  object  of  the  rules  of  this  House  is  not  simply  to 
prevent  the  House  of  Representatives  from  being  an  unorganized  mob 
of  men.  The  object  of  the  rules  of  this  House  more  than  anything  else 
is  to  protect  the  rights  of  every  individual  man  upon  the  floor  of  the 
House,  and  more  than  all,  Mr.  Chairman,  the  object  of  our  having  a 
set  of  rules  in  this  House  is  to  protect  the  rights  of  the  minority  of  this 
House.  It  is  to  see  that  the  minority  here  has  justice,  and  to  regulate 
the  majority  so  that  they  shall  not  trample  on  the  rights  of  the  minority 
and  the  rights  of  the  individual  Members  of  this  House. 

I  therefore  say  that  no  man  has  the  right  to  complain  that  an  objec- 
tion is  being  made  to  what  he  is  doing  if  his  course  of  action  is  beyond 
and  outside  of  the  rules  of  the  House.  Now,  the  gentleman  said  that  we 
could  not  legislate.  A  great  deal  of  legislation  that  goes  on  appropria- 
tion bills  belongs  to  other  committees  in  this  House.  If  the  Appropria- 
tion Committee  of  this  House  did  not  legislate  in  appropriation  bills 
that  legislation  would  be  enacted  after  coming  from  other  committees 
in  the  House ;  and  if  it  came  from  other  committees  it  often  would  receive 
a  more  careful  consideration,  and  a  better  consideration,  than  when  it 
comes  in  here  to  be  enacted  on  an  appropriation  bill. 


FINANCIAL   LEGISLATION  327 

I  do  not  think  there  is  any  rule  in  this  House  that  is  wiser,  that  is  better, 
that  is  safer  for  the  good  government  of  this  House,  than  Rule  XXI, 
which  prohibits  the  enactment  of  new  legislation  on  appropriation  bills, 
and  I  think  the  Members  of  the  House  will  recognize  that  fact  when  they 
realize  that  if  you  put  new  legislation  on  an  appropriation  bill  and  bring 
it  into  this  House  you  go  into  the  Committee  of  the  Whole,  you  have  no 
chance  to  call  the  roll,  you  have  no  chance  to  put  the  membership  of 
this  House  on  a  record  vote  on  that  direct  question.  If  you  allow  this  to 
be  done,  to  enact  new  legislation  on  a  general  appropriation  bill,  you 
can  put  law  through  this  House  without  complying  with  the  constitu- 
tional requirement  that  one-fifth  of  the  membership  of  this  House  shall 
be  entitled  to  have  a  record  vote,  because  you  can  only  have  the  record 
vote  on  the  adoption  of  the  bill  itself. 

The  CHAIRMAN.    For  what  purpose  does  the  gentleman  rise? 

Mr.  SMITH  of  Iowa.  For  the  purpose  of  moving  to  strike  out  the  last 
word. 

The  CHAIRMAN.  The  gentleman  from  Iowa  moves  to  strike  out  the 
last  word. 

Mr.  SMITH  of  Iowa.  Mr.  Chairman,  during  the  consideration  of  this 
bill  there  has  apparently  arisen  something  of  bitterness  as  between  Mem- 
bers of  the  House  sitting  in  the  committee  which,  it  seems  to  me,  we 
might  well  avoid,  if  possible.  The  growth  of  appropriations  for  the  sup- 
port of  the  Federal  Government  has  been  so  great  that  under  the  most 
favorable  circumstances  it  is  almost  impossible  for  the  House  to  con- 
sider properly  the  separate  items  of  expenditure.  Hampered  as  we  are 
by  the  difficulties  incident  to  the  appropriation  of  money  for  the  public 
service,  we  ought,  at  least  so  far  as  possible,  to  approach  the  consideration 
of  these  questions  free  from  excitement  and  free  from  anger.  I  do  not 
mean  by  this  remark  to  criticise  at  all  the  gentlemen  who  have  seen  fit  to 
raise  points  of  order  during  the  consideration  of  this  bill.  I  was  myself 
engaged  in  a  greater  or  less  degree  in  presenting  points  of  order  during 
the  consideration  of  the  Army  bill.  Some  of  my  colleagues  upon  the  Ap- 
propriations Committee  were  also  engaged  in  that,  and  I  am  not  here  to 
criticise  in  others  those  things  I  practice  myself.  Of  course,  there  has 
sometimes  arisen  the  question  as  to  whether  the  points  of  order  made 
against  this  bill  are  in  memory  of  the  points  of  order  made  against  the 
Army  bill. 

Mr.  SHACKLEFORD.    Mr.  Chairman,  a  point  of  order. 

The  CHAIRMAN.    The  gentleman  will  state  the  point  of  order. 

Mr.  SHACKLEFORD.  The  gentleman  is  not  speaking  to  anything  be- 
fore the  House. 

Mr.  SMITH  of  Iowa.  I  am  speaking  to  an  amendment  under  the  in- 
variable practice  of  the  House  which  I  had  a  right  to  propose.  The 
question  has  arisen  in  my  mind  whether  the  fate  that  overtook  the  bill  to 
abolish  the  grade  of  Lieutenant-General  in  the  Army  may  have  had 


328  AMERICAN   FEDERAL   GOVERNMENT 

anything  to  do  with  arousing  the  feeling  that  is  displayed  now  upon  the 
floor  of  this  House,  but  whatever  may  have  been  the  provocation  upon 
our  part  and  whatever  may  have  been  the  direct  cause  that  induced  our 
distinguished  friends  to  raise  these  points  of  order,  I  am  not  seeking  to 
criticise  them  nor  in  any  sense  to  rebuke  them.  I  assume  no  right  or  au- 
thority to  rebuke  them,  but  it  does  seem  to  me  that  misapprehension 
exists  here  as  to  the  purposes  of  the  rules  of  the  House.  The  rules  of  the 
House  are  not  like  the  criminal  laws  of  the  land.  The  criminal  laws  of  the 
land  should  be  enforced  or  repealed,  but  the  rules  of  the  House  contem- 
plate their  being  set  aside  by  numerous  methods.  We  set  apart  special 
days  on  which  to  suspend  the  rules  and  for  the  time  being  set  them  aside. 
We  pass  more  measures  here  by  unanimous  consent,  perhaps,  than  by 
all  other  methods  combined  and  not  in  accordance  with  the  rules  —  the 
bills  not  being  entitled  to  consideration  under  the  rules. 

Mr.  PRINCE.    May  I  ask  the  gentleman  a  question? 

Mr.  SMITH  of  Iowa.    Oh,  most  certainly. 

Mr.  PRINCE.    You  say  we  pass  many  bills  by  unanimous  consent. 

Mr.  SMITH  of  Iowa.    I  do. 

Mr.  PRINCE.  Is  it  not  the  invariable  rule  of  the  Speaker  of  the  House, 
when,  for  instance,  the  gentleman  from  Iowa  rises  and  asks  unanimous 
consent  for  the  present  consideration  of  a  bill,  that  the  bill  is  sent  to  the 
Clerk's  desk  and  read,  and  the  Speaker  asks  if  there  is  objection,  and 
pauses  for  an  objection? 

Mr.  SMITH  of  Iowa.  The  gentleman  is  certainly  correct  as  to  the 
practice  of  the  House. 

Mr.  PRINCE.  And  unanimous  consent  can  be  objected  to  if  we  de- 
sire to  do  so. 

Mr.  SMITH  of  Iowa.  I  am  simply  seeking  to  point  out,  Mr.  Chairman, 
that  while  we  have  rules  that  we  are  entitled  to  insist  upon,  they  are  not, 
under  the  practice  of  the  House,  insisted  upon  in  season  and  out  of 
season  as  though  they  were  statutes,  but  that  most  of  the  legislation  of 
the  House  is  done  either  by  motion  to  suspend  the  rules  or  by  unanimous 
consent,  and  bills  are  taken  up  which  could  not  come  up  under  the  rules, 
save  by  unanimous  consent.  So  that  most  of  our  legislation  is  legislation 
enacted  not  in  obedience  to  the  rules  laid  down,  but  by  either  unanimous 
or  through  two-thirds  approval  by  a  departure  from  the  ordinary  rules. 
So  it  has  been  the  practice  from  the  early  time  to  make  such  changes  on 
appropriation  bills  as  are  made  upon  the  bill  now  before  the  Committee 
of  the  Whole  House  on  the  state  of  the  Union.  That  does  not  deny  to 
anyone  the  right  to  raise  a  point  of  order  or  object,  and  what  I  am  seeking 
to  get  at  is  this :  That  the  rules  are  made  that  they  may  be  insisted  upon 
by  any  Member,  in  the  exercise  of  his  best  judgment,  for  the  advance- 
ment of  good  legislation,  but  that  the  objection  ought  not  to  be  raised 
unless  the  proposed  matter  is  objectionable. 

The  CHAIRMAN.    The  time  of  the  gentleman  has  expired. 


FINANCIAL   LEGISLATION  329 

Mr.  SMITH  of  Iowa.  I  ask  unanimous  consent  to  proceed  for  ten 
minutes. 

The  CHAIRMAN.  Is  there  objection?  [After  a  pause.]  The  Chair 
hears  none. 

Mr.  SMITH  of  Iowa.  I  want  to  say  this  to  those  who  have  objected: 
That  it  is  their  strict  legal  right ;  but  if  a  meritorious  measure  is  brought 
in  here  to  reduce  expenditures,  that  it  is  not  a  wise  time,  in  my  judgment, 
that  they  should  seek  to  control  the  judgment  of  others  by  insisting  upon 
a  rigid  enforcement  of  the  rules.  These  rules  are  not  enforced  as  to  the 
greater  number  of  bills  that  pass  the  House.  Here  is  a  proposition  to 
reduce  public  expenditures.  It  is  a  laudable  enterprise ;  a  commendable 
effort;  and  yet  these  rules  that  strike  down  alike  meritorious  proposi- 
tions and  those  lacking  in  merit  are  cited  for  the  purpose  of  preventing 
the  reduction  of  public  expenditures.  No  criticism  will  be  heard  from 
me  upon  my  distinguished  friend  from  Illinois.  Between  us  there  have 
always  existed  most  pleasant  personal  relations,  and  I  trust  they  will 
always  so  continue.  But  I  ask  the  question  here :  Passing  over,  free  from 
anger  and  free  from  offense,  whatever  may  have  been  given  by  any  man 
in  the  past,  should  these  rules  be  resorted  to  for  the  purpose  of  preventing 
a  reduction  in  public  expenditures  ?  If  we  are  to  come  here  to  discharge 
our  duty  dispassionately  to  the  whole  country,  we  should  insist  upon  the 
rules  when  their  violation  would  be  detrimental  to  the  public  service, 
and  waive  these  rules  whenever  we  can  thereby  promote  the  public  wel- 
fare. So  I  hope  that  whether  the  offense  originally  emanated  from  one 
side  or  the  other  in  this  matter,  that  the  rules  will  be  enforced  when- 
ever asserted,  as  they  will  be  by  the  Chair;  but  that  no  Member  will 
feel  that  it  is  his  duty  to  raise  a  point  of  order  against  any  portion  of 
any  bill  when  the  enactment  of  that  provision  would  be  beneficial  to  the 
public  welfare. 

Mr.  SHERLEY.    Will  the  gentleman  allow  me  to  ask  him  a  question? 

Mr.  SMITH  of  Iowa.     Certainly. 

Mr.  SHERLEY.  I  will  ask  the  gentleman  if  he  does  not  think  the  rule 
that  he  is  speaking  in  favor  of,  that  should  actuate  Members  not  on  the 
committee,  ought  to  also  actuate  the  Members  on  the  committee  ? 

Mr.  SMITH  of  Iowa.    I  do. 

Mr.  SHERLEY.  Does  not  the  gentleman  think  they  ought  to  consider 
amendments  offered  in  good  faith  by  Members  not  on  their  committee 
with  regard  to  whether  the  amendment  is  for  a  good  purpose  or  not,  and 
not  simply  make  the  point  of  order,  irrespective  of  the  merits  of  the 
proposition  ? 

Mr.  SMITH  of  Iowa.  I  will  answer  that  question  with  great  pleasure. 
The  committee,  at  least  the  subcommittee,  has  given  a  most  patient  and 
careful  investigation  to  the  items  of  this  bill.  It  could  have  given  no 
consideration  to  an  amendment  here  proposed  from  the  floor.  An 
amendment,  therefore,  proposed  by  the  committee  after  full  considera- 


330  AMERICAN   FEDERAL   GOVERNMENT 

tion  should  not,  in  my  judgment,  be  put  upon  an  equality  with  a  propo- 
sition made  on  the  floor  that  had  never  been  submitted  to  the  committee. 

Mr.  SHERLEY.  There  is  something  in  that;  but  does  not  the  gentle- 
man realize  that  the  practice  of  the  committees  having  in  charge  these 
various  appropriation  bills  has  been  to  make  the  point  of  order  uni- 
versally, without  regard  to  the  matter,  whether  wise  or  unwise;  and  is 
not  the  gentleman  now  in  a  rather  peculiar  position  when  he  appeals 
to  the  House  to  accept  the  wisdom  of  the  committee,  that  never  has 
accepted  the  wisdom  of  the  Members  of  the  House  ? 

Mr.  SMITH  of  Iowa.  I  can  not  agree  that  it  has  been  the  practice 
universally  to  raise  the  point  of  order,  but  the  general  practice  has  arisen 
because  the  great  body  of  amendments  offered  from  the  floor  has  not 
been  considered  by  the  committee ;  and  it  is  a  matter  of  common  knowl- 
edge that  wise  and  orderly  legislation  ordinarily  can  not  be  prepared 
here  upon  the  floor  of  the  House,  but  ought  to  be  prepared  in  the  com- 
mittee room. 

Mr.  FITZGERALD.  The  rules  of  the  House  were  adopted  in  a  manner 
that  prevented  any  Member  of  the  House  attempting  to  effectuate  a 
change.  As  soon  as  the  House  was  organized  a  motion  was  made  that 
the  rules  be  adopted  which  were  in  force  in  a  previous  Congress,  the 
previous  question  was  demanded  and  ordered,  and  no  Member  of  the 
House  practically  had  any  voice  whatever  in  the  make-up  of  the  rules 
under  which  the  House  operates. 

So  that  when  some  Member  of  the  House  now  insists  on  exercising  the 
rights  that  are  conferred  upon  him  under  those  rules,  it  comes  with  poor 
grace  from  those  who  have  shackled  the  House  with  the  rules  to  complain 
of  their  enforcement. 

It  may  be  —  and  I  have  no  doubt  it  is  the  fact  —  that  some  of  the 
points  of  order  that  have  been  interjected  during  the  course  of  this  bill 
have  prevented  reforms  and  economies, -but  the  House  must  realize  that 
in  giving  gentlemen  the  power  to  prevent  the  consideration  of  legislation 
the  House  itself  is  responsible  for  that  action  and  not  the  gentlemen  who 
undertake  to  exercise  their  rights. 

Even,  Mr.  Chairman,  though  a  member  of  the  committee  reporting 
the  bill  should  rise  to  interpose  a  point  of  order,  gentlemen  are  inclined 
to  criticise  him  seriously  for  that  action.  I  am  not  at  all  in  sympathy 
with  that  prevalent  feeling  in  this  House,  that  committees  are  so  impec- 
cable, that  they  are  so  virtuous,  that  they  are  so  wise,  that  when  they 
have  determined  by  a  majority  vote  that  certain  things  should  be  reported 
to  the  House  it  is  high  treason  for  any  Member  to  exercise  his  right  under 
the  rules  to  prevent,  if  he  desires,  the  consideration  of  those  matters  in 
violation  of  the  rule.  [Applause.] 

I  am  not  going  to  criticise  my  own  committee.  I  believe  that  the  com- 
mittee has  done  its  full  duty  in  calling  the  attention  of  the  House  to  abuses 
that  exist,  and  I  am  indifferent  to  what  happens  to  any  provision  in  this 


FINANCIAL   LEGISLATION  331 

bill.  I  will  vote  for  each  provision  or  against  it,  as  my  judgment  dictates 
that  I  should.  I  am  perfectly  willing  that  every  other  Member  of  this 
House  shall  exercise  freely  all  the  rights  that  he  has  under  the  rules  in 
the  consideration  of  this  bill,  and  let  each  Member  do  as  the  committee 
is  compelled  to  do,  assume  the  responsibility  for  his  own  action.  When 
that  is  done,  Mr.  Chairman,  if  it  prevents  reforms  being  made  on  this 
bill,  it  may  result  in  vitalizing  some  of  the  dead  committees  of  the  House. 
It  may  result  in  effecting  a  reform  by  accomplishing  it  through  the  proper 
machinery  of  the  House,  and  there  may  no  longer  be  the  spectacle  of 
seventeen  or  eighteen  committees  organized  for  the  purpose  of  working, 
but  existing  merely  to  give  places  of  refuge  to  the  gentlemen  fortunate 
enough  to  be  appointed  as  chairmen  of  these  committees. 

So  I  would  say  to  my  colleagues  on  the  committee,  in  the  best  of  good 
nature,  whatever  be  the  course  followed  by  these  gentlemen  or  any  other 
gentlemen,  and  whatever  may  be  the  fate  of  any  provision  in  the  bill, 
that  we  rest  content  in  the  knowledge  that  we  have  performed  our  duty, 
and  satisfied  that  everybody  else  is  endeavoring  to  perform  his  accord- 
ing to  his  best  judgment  and  according  to  his  rights. 

Mr.  SMITH  of  Arizona.  Mr.  Chairman,  it  seems  to  me  that  they  have 
gotten  into  a  difficulty  here  that  could  be  very  easily  and  peacefully  and 
properly  settled.  Why  does  not  this  committee  rise  and  report  to  the 
House  their  inability  to  handle  an  appropriation  bill,  refer  it  to  the  Com- 
mittee on  Territories  of  this  House,  get  a  rule  passed  by  the  Speaker 
and  pass  this  bill,  and  don't  let  anybody  read  it?  [Laughter.]  What 
is  the  use  of  talking  about  it  and  wasting  time  in  this  way  ?  Two  millions 
of  people  can  be  disposed  of  in  twenty  minutes'  debate,  and  here  you  are 
quibbling  over  what  a  clerk  gets  in  some  Department.  I  am  ashamed 
to  see  my  friends  forgetting  how  to  attend  to  public  business.  [Laughter.] 
They  have  got  no  business  to  consider  this  bill,  anyway.  It  has  come 
to  a  point  in  the  consideration  of  public  business  in  this  House  that  con- 
sideration of  a  bill  is  folly.  Why,  you  can  not  even  send  it  over  to  the 
Senate  in  a  shape  to  suit  you.  This  skeleton  is  going  over  there,  and 
the  gentlemen  who  have  been  trying  so  hard  to  maintain  the  dignity  of 
this  body  will  be  crawling  on  their  stomachs  to  the  Senate  to  get  these 
items  put  back  in  the  bill.  Abuse  it  with  the  lips  and  serve  it  with  your 
hearts  every  minute  when  you  want  something  done.  [Applause.]  That 
is  what  will  become  of  this  bill. 

Mr.  PAYNE.  Mr.  Chairman,  I  am  reluctant  to  take  any  of  the  time 
of  the  committee,  because  I  think  this  bill  would  have  made  much  more 
progress  if  there  had  been  less  debate  upon  the  method  of  procedure  of 
some  of  the  gentlemen  in  the  House.  Now,  the  House  is  amply  able  to 
take  care  of  itself,  even  without  the  aid  of  the  Delegate  from  Arizona 
[Mr.  Smith],  and  to  pass  such  legislation  as  the  majority  of  the  House 
shall  deem  best  to  have  passed  and  to  defeat  such  legislation  as  the  ma- 
jority shall  deem  best  to  defeat.  Of  course,  it  is  in  the  province  of  any 


332 


AMERICAN  FEDERAL   GOVERNMENT 


Member  of  the  House  in  Committee  of  the  Whole  to  raise  a  point  of 
order,  and  if  the  point  of  order  is  well  taken,  the  chairman  will  promptly 
rule.  These  rules  are  in  the  interest  of  economy,  so  far  as  they  relate 
to  appropriation  bills,  in  order  that  the  Committee  on  Appropriations 
or  anyone  else  shall  not  come  in  here  and  create  new  offices  unless  it  is 
considered  by  the  appropriate  committee,  the  committee  having  that 
legislation  in  charge.  They  are  purposely  framed  so  that  any  Member 
can  defeat  any  such  attempt  on  the  part  of  the  Committee  on  Appro- 
priations by  raising  the  point  of  order,  and  it  does  not  disturb  me  in 
the  least  to  see  two  gentlemen  sitting  here  and  raising  points  of  order. 
It  has  generally  been  the  custom  of  the  House,  Mr.  Chairman,  in  such 
cases,  for  a  gentleman  to  reserve  the  point  of  order  on  a  provision  in  the 
bill  which  he  thought  was  out  of  order  and  which  he  could  not  see  the 
merit  of  until  the  item  was  explained,  and  if  it  was  explained  satis- 
factorily to  him,  to  waive  the  point  of  order  and  let  it  go  in  the  bill; 
but  gentlemen  have  the  right  to  insist  upon  the  point  of  order.  Now, 
I  hope  they  will  insist  to  their  hearts'  content,  and  I  hope  that  when 
similar  points  of  order  are  raised  upon  these  items  which  must  go  out,  that 
the  matter  will  be  left  speedily  to  the  Chair  to  rule  upon  and  to  rule 
whether  they  are  in  order  or  not,  and  with  less  debate  upon  each  propo- 
sition we  can  get  through  with  the  consideration  of  this  bill  in  the  Com- 
mittee of  the  Whole,  each  Member  finding  out  what  he  thinks  ought 
to  be  in  and  what  he  thinks  ought  to  be  out.  Afterwards  the  House  can 
very  easily  pass  the  bill,  and  pass  such  a  bill  as  the  majority  of  the  House 
is  in  favor  of,  and  no  two  Members  or  any  number  of  Members  less 
than  a  majority  of  the  House  can  prevent  it ;  we  can  do  it  with  fair  con- 
sideration, and  we  can  send  a  bill  over  to  the  Senate  which  does  not 
need  to  be  deliberated  upon  by  making  a  speech,  when  three  or  four 
Members  are  present,  of  three  or  four  hours  in  length;  we  can  have 
here  when  necessary  the  five-minute  debate,  when  the  Members  can  be 
brought  into  contact  with  all  the  reasons  for  or  against  a  single  item  in 
the  bill,  and  we  can  proceed  in  an  orderly  manner. 

Gentlemen  declaim  against  the  rules  of  the  House  and  they  want  a 
sort  of  town  meeting,  where  every  one  of  386  Members,  clamoring  for 
recognition  of  the  Speaker,  shall  each  receive  recognition  at  the  same 
time  to  make  his  motion  or  to  make  his  speech.  They  want  pandemo- 
nium. The  rules  of  the  House,  Mr.  Speaker,  are  not  the  result  of  any 
one  man's  work.  They  are  the  result  of  the  experience  of  many  more 
years  than  most  of  us  have  ever  seen  either  in  the  House  or  out  of  it. 
They  are  the  result  of  the  best  thought  of  the  best  men  who  have  adorned 
the  halls  of  Congress  in  the  past  on  both  sides  of  the  House.  They  were 
made  for  the  protection  of  the  minority  as  well  as  for  the  advantage  of 
the  majority  in  having  its  will  preferably  in  this  House.  And  no  such 
exhibition  as  has  been  made  here  to-day  and  no  such  declarations  as 
we  have  just  heard  from  the  gentleman  from  Arizona  will  change  the 


FINANCIAL   LEGISLATION  333 

rules  of  the  House.  The  rules  of  the  House  will  remain  after  we  have 
left  it  and  they  will  remain  substantially  as  they  are  to-day,  and  the  House 
will  transact  its  business  under  these  rules  in  an  orderly  and  proper 
manner.  I  want  to  say  that  gentlemen  who  are  opposing  this  bill  will 
finally  see  the  bill  pass  in  the  shape  that  the  majority  of  the  House  desire 
it  passed  and  it  will  go  over  to  the  Senate  and  they  will  perform  their 
functions  upon  it  by  way  of  amendment. 


SPECIAL  RULE  ON  THE  LEGISLATIVE,  EXECUTIVE,  AND 
JUDICIAL  APPROPRIATION  BILL1 

[In  order  to  save  the  Legislative,  Executive,  and  Judicial  Appropriation  Bill 
from  ruin,  the  committee  appealed  to  the  Committee  on  Rules  which  came  to 
the  rescue  on  March  28,  by  reporting  a  resolution  which  marks  a  great  ad- 
vance in  the  power  of  centralized  leadership  in  the  House.  The  special  rule, 
as  will  be  seen,  virtually  cut  off  any  further  right  on  the  part  of  members  to 
enter  objections  against  the  bill  under  consideration.  This  action  illustrates 
perfectly  how  absolutely  the  procedure  of  the  House  is  controlled  by  the  Com- 
mittee on  Rules.  This  special  rule  and  the  discussions  thereon  are  of  the  highest 
importance  to  an  understanding  of  our  Congressional  procedure.! 

MR.  DALZELL.  Mr.  Speaker,  I  submit  the  following  privileged  report 
from  the  Committee  on  Rules. 

The  SPEAKER.  The  gentleman  from  Pennsylvania  submits  a  report 
from  the  Committee  on  Rules,  which  the  Clerk  will  read. 

The  Clerk  read  as  follows: 

The  Committee  on  rules,  to  whom  was  referred  the  resolution  of  the  House 
No.  383,  have  had  the  same  under  consideration  and  respectfully  report  in  lieu 
thereof  the  following: 

Resolved,  That  hereafter,  in  consideration  of  the  bill  (H.  R.  16472)  making 
appropriations  for  the  legislative,  executive,  and  judicial  expenses  of  the  Gov- 
ernment, and  for  other  purposes,  in  Committee  of  the  Whole  House  on  the 
state  of  the  Union,  it  shall  be  in  order  to  consider,  without  intervention  of  a 
point  of  order,  any  section  of  the  bill  as  reported,  except  section  8 ;  and  upon 
motion  authorized  by  the  Committee  on  Appropriations  it  shall  be  in  order  to 
insert  in  any  part  of  the  bill  any  provision  reported  as  part  of  the  bill  and 
heretofore  ruled  out  on  a  point  of  order. 

Mr.  DALZELL.    Mr.  Speaker,  on  that  I  ask  the  previous  question. 

Mr.  SULZER.  Mr.  Speaker,  I  should  like  to  have  some  explanation  in 
regard  to  this  rule.  It  seems  to  be  a  very  extraordinary  departure  from 
the  general  rules  of  the  House. 

Mr.  DALZELL.  I  do  not  wish  to  discuss  the  rule  until  after  the  previous 
question  is  ordered,  because  any  debate  before  the  ordering  of  the  pre- 
vious question  would  cut  off  all  debate  thereafter. 

1  Congr.  Record,  March  28,  1906. 


334  AMERICAN   FEDERAL   GOVERNMENT 

The  SPEAKER.  The  gentleman  from  Pennsylvania  moves  the  pre- 
vious question  upon  agreeing  to  the  resolution. 

The  question  being  taken,  on  a  division  (demanded  by  Mr.  Dalzell) 
there  were  —  ayes  1 20,  noes  7 1 . 

Accordingly  the  previous  question  was  ordered. 

The  SPEAKER.  The  gentleman  from  Pennsylvania  is  entitled  to 
twenty  minutes,  and  the  gentleman  from  Mississippi  [Mr  Williams]  to 
twenty  minutes. 

Mr.  DALZELL.  Mr.  Speaker,  I  shall  occupy  but  a  very  brief  time  in 
explanation  of  the  rule. 

The  House  is  familiar  with  the  fact  that  in  the  consideration  of  the 
legislative  appropriation  bill  in  Committee  of  the  Whole  a  great  many 
paragraphs  have  been  stricken  out  by  reason  of  an  appeal  to  the  rule 
of  the  House  which  prevents  legislation  on  appropriation  bills.  The 
trouble  has  been  mainly  with  respect  to  the  number  of  employees  pro- 
vided for  in  the  bill  and  with  respect  to  the  salaries  of  employees.  The 
point  of  order  has  been  made  that  employees  not  provided  for  by  exist- 
ing law  are  included  in  the  bill  and  that  salaries  not  provided  for  by  ex- 
isting law  are  included  in  the  bill ;  and  it  is  fair  to  say  that  it  seems  to 
me  that  in  all  cases  the  point  of  order  has  been  well  taken. 

The  difficulty  with  which  the  House  is  confronted  arises  out  of  the 
fact  that  the  law  fixing  the  number  of  employees  and  the  salaries  of 
employees  in  the  various  Departments  is  in  most  cases  an  old  law,  in 
some  cases  as  old  as  thirty  years,  and,  of  course,  during  the  passage  of 
those  thirty  years  the  service  of  the  Government  has  largely  increased, 
the  necessity  for  new  employees  has  arisen,  and  the  necessity  for  changes 
of  salary  has  arisen.  Those  changes  ought  to  have  been  made  by  general 
law.  The  fault  lies  not  wholly  with  the  Committee  on  Appropriations, 
but  largely  with  the  various  committees  of  the  House,  who  ought  to  have 
secured  the  passage  of  general  laws  which  would  authorize  the  Commit- 
tee on  Appropriations  to  insert  these  provisions  in  the  appropriation  bill. 
A  custom, .  however,  has  grown  up  during  all  these  years  not  to  make 
points  of  order  upon  items  in  the  appropriation  bill  which  were  recog- 
nized by  the  House  as  appropriate  under  the  circumstances,  and  the 
custom  therefore  has  justified  the  Committee  on  Appropriations  from 
year  to  year  in  putting  into  the  appropriation  bill  these  increases  of  salary 
and  these  increases  of  appropriation.  As  I  say,  the  fault  lies  with  the 
committees  of  the  House,  who  ought  to  have  provided  general  legisla- 
tion. In  illustration  of  that  proposition,  let  me  call  your  attention  to 
what  appears  on  two  pages  of  the  Record.  An  appropriation  in  this  bill 
for  the  employees  at  New  Orleans  went  out  on  a  point  of  order  because 
it  infringed  a  provision  of  existing  law  on  the  subject.  That  provision 
was  over  thirty  years  old;  nevertheless,  during  all  these  thirty  years 
since  its  enactment,  without  any  additional  legislation,  appropriations 
corresponding  to  this  have  been  made  by  the  sufferance  of  the  House. 


FINANCIAL   LEGISLATION  335 

Now,  on  the  opposite  page  of  the  Record,  you  will  find  a  like  appropria- 
tion for  employees  at  New  York,  but  that  did  not  go  out  on  a  point  of 
order,  because  there  appears  on  the  statute  book  this  provision : 

The  assistant  treasurer  at  New  York  may  appoint  from  time  to  time,  by  and 
with  the  consent  and  approbation  of  the  Secretary  of  the  Treasury,  such  other 
clerks,  messengers,  and  watchmen,  in  addition  to  those  employed  by  him,  as 
the  exigencies  of  the  business  may  require. 

In  other  words,  we  ought  to  have,  to  avoid  the  confusion  into  which 
we  have  fallen  in  this  case,  such  general  legislation  upon  the  statute 
books.  It  is  apparent,  however,  that  the  House  can  not  now  stop,  the 
business  of  the  country  can  not  be  held  up,  because  of  the  lack  of  this 
general  legislation.  The  Government  needs  must  be  met,  and  therefore 
the  only  way  in  which  the  present  needs  of  the  Government  can  be  met 
is  by  the  adoption  of  this  rule. 

The  rule  provides  that  these  items  which  have  already  gone  out  on 
points  of  order  may  be  inserted  at  the  will  of  the  House.  In  other  words, 
it  submits  to  the  House  the  right  to  say  whether  or  not  upon  the  merits 
the  items  shall  go  into  the  bill.  The  rule  also  provides  that,  as  to  the 
items  not  yet  reached,  they  shall  be  passed  upon  on  their  merits  irrespec- 
tive of  the  technical  rule;  all  except  section  8,  which  relates  to  super- 
annuated clerks,  so  called.  Your  committee  felt  that  that  was  a  piece 
of  legislation  that  was  entitled  to  be  considered  by  the  House  as  a  sepa- 
rate proposition,  and  therefore  that  is  excepted  from  the  operation  of 
the  rule. 

Mr.  CURTIS.  Under  the  rule  that  section  would  be  subject  to  a  point 
of  order? 

Mr.  DALZELL.    Yes. 

Mr.  CURTIS.  I  think  that  provision  unfair  to  the  clerks  who  have 
devoted  many  years  to  the  service,  many  of  whom  were  Union  soliders, 
and  it  should  be  stricken  from  the  bill. 

Mr.  JONES  of  Washington.  The  rule  does  not  make  anything  in  order 
that  may  be  offered  to  be  inserted  by  a  Member? 

Mr.  DALZELL.  No;  it  does  not  make  anything  in  order  except  what 
was  reported  by  the  Appropriation  Committee  and  an  amendment  to 
it  which  would  be  germane. 

Mr.  JONES  of  Washington.  Does  n't  the  gentleman  think  that  the 
Members  of  the  House  ought  to  be  allowed  to  offer  amendments  to  be 
considered  on  their  merits? 

Mr.  DALZELL.    They  will  have  that  privilege. 

Mr.  JONES  of  Washington.  If  subject  to  a  point  of  order,  they  would 
go  out. 

Mr.  DALZELL.    They  would  go  out  anyway. 

Mr.  MANN.  Under  this  rule  the  amendment  which  the  Committee  on 
Appropriations  offers  —  that  is,  to  increase  the  salaries  —  is  in  order. 


336  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  DALZELL.    If  it  is  in  the  bill. 

Mr.  MANN.  Whether  it  is  in  the  bill  or  not,  if  the  committee  reports 
it,  it  is  in  order. 

Mr.  DALZELL.    Only  as  reported  in  the  bill. 

Mr.  MANN.  In  that  case,  then,  the  amendments  offered  by  any  Mem- 
ber of  the  House  to  increase  that  amount  would  necessarily  be  in  order. 

Mr.  DALZELL.    But  subject  to  a  legitimate  point  of  order,  of  course. 

Mr.  MANN.  If  the  proposition  offered  by  the  Committee  on  Appro- 
priations is  in  order,  an  amendment  to  that  proposition  is  also  in  order. 

Mr.  DALZELL.    I  should  say  so. 

Mr.  NORRIS.  I  would  like  to  ask  the  gentleman  from  Pennsylvania 
if  the  Committee  on  Appropriations  puts  in  the  bill  an  appropriation  for 
a  salary,  for  instance,  greater  than  that  allowed  by  existing  law,  it  would 
not  be  subject  to  a  point  of  order;  but  if  a  Member  on  the  floor  of  the 
House  offers  an  amendment  that  increases  the  salary  in  the  bill  greater 
than  that  allowed  by  existing  law,  that  would  be  subject  to  a  point  of 
order  ? 

Mr.  DALZELL.  Not  if  the  amendment  was  to  a  paragraph  in  the  bill 
that  under  the  rule  was  not  subject  to  a  point  of  order. 

Mr.  NORRIS.  So  that  the  gentleman  may  understand  my  proposition 
suppose  it  makes  an  appropriation  for  a  salary  that  is  in  exact  accord- 
ance with  existing  law,  and  a  Member  on  the  floor  of  the  House  offers 
an  amendment  to  increase  it  beyond  that  limit,  would  that  be  in  order  ? 

Mr.  DALZELL.  I  should  think  not ;  I  should  think  it  would  be  subject 
to  a  point  of  order.  If  the  committee's  proposition  was  in  accordance 
with  the  law,  and  the  amendment  not  in  accordance  with  the  law,  I 
should  think  it  would  be  subject  to  a  point  of  order. 

Mr.  NORRIS.  In  other  words,  the  committee  can  propose  amendments 
that  go  beyond  existing  law,  but  Members  of  the  House  can  not.  This 
privilege  exists  only  in  favor  of  the  committee.  In  other  words,  it  is  a 
rule  that  does  not  work  both  ways. 

Mr.  DALZELL.  Not  at  all.  It  is  a  fule  that  allows  the  bill  as  reported 
by  the  Committee  on  Appropriations  to  be  considered  without  being 
subject  to  points  of  order,  except  as  to  section  8.  That  is  all  it  is. 

Mr.  WM.  ALDEN  SMITH.    It  is  to  be  considered  on  its  merits. 

Mr.  DALZELL.  In  other  words,  it  submits  to  the  House  the  bill  as 
reported  by  the  Committee  on  Appropriations  on  its  merits.  The  com- 
mittee may  vote  on  each  proposition  without  respect  to  points  of  order 
upon  the  merits  of  the  proposition. 

Mr.  BROOKS  of  Colorado.  Mr.  Speaker,  to  be  more  specific  on  the 
question  asked  by  the  gentleman  from  Nebraska  [Mr.  Norris],  then  if 
the  committee  has  reported  an  item  which  is  entirely  legal,  or  an  amend- 
ment, and  the  House  by  amendment  attempts  to  change  that  in  any 
way,  that  proposition  is  open  to  a  point  of  order. 

Mr.  DALZELL.    Not  unless  it  is  against  the  law. 


FINANCIAL  LEGISLATION 


337 


Mr.  BROOKS  of  Colorado.  In  any  way,  so  that  it  .transgresses  the 
rules. 

Mr.  DALZELL.  For  instance,  if  there  is  an  amount  named  in  the  bill, 
that  is  subject  to  amendment. 

Mr.  BROOKS  of  Colorado.  One  further  question.  Then  if  the  com- 
mittee has  reported  an  item  which  if  objected  to  would  go  out  on  a 
point  of  order,  that  item  may  be  further  amended  also  in  the  direction 
that  would  have  been,  without  the  rule,  open  to  a  point  of  order. 

Mr.  DALZELL.    I  think  so;  yes. 

Mr.  FITZGERALD.    Mr.  Speaker,  will  the  gentleman  yield  to  a  question  ? 

Mr.  DALZELL.    Yes. 

Mr.  FITZGERALD.  Did  the  Committee  on  Rules  proceed  upon  the 
theory  that  the  Committee  on  Appropriations  was  unanimously  in  favor 
of  having  considered  in  this  way  all  of  the  legislative  provisions  except- 
ing section  8? 

Mr.  DALZELL.    I  do  not  understand  the  gentleman's  question. 

Mr.  FITZGERALD.  Did  the  Committee  on  Rules  proceed  upon  the 
assumption  that  the  Committee  on  Appropriations  was  unanimous  in 
desiring  to  have  all  of  the  legislative  provisions  considered  in  this  way 
excepting  section  8  ? 

Mr.  DALZELL.  Why,  we  did  not  think  anything  about  what  the  Com- 
mittee on  Appropriations  wanted  especially. 

Mr.  FITZGERALD.  I  think  the  gentleman  did,  because  his  rule  pro- 
vides that  all  the  things  reported  in  the  bill  by  the  Committee  on 
Appropriations  shall  be  considered  regardless  of  the  rules,  excepting  sec- 
tion 8.  Now,  there  are  several  other  distinctively  legislative  provisions 
in  the  bill  not  excepted  by  the  rule,  but  to  which  there  was  objection  in 
the  committee,  about  which  notice  was  given  that  points  of  order  would 
be  interposed  and  which  this  rule  takes  out  of  the  operation  of  the  rules 
of  the  House.  I  would  ask  the  gentleman  to  explain  why  the  Committee 
on  Rules  singled  out  one  legislative  provision  and  not  other  legislative 
provisions  equally  offensive? 

Mr.  DALZELL.  Because  we  thought  that  that  one  legislative  provision 
was  so  radical  in  its  character,  so  much  more  radical  than  any  of  the 
others,  that  it  ought  to  have  separate  consideration  in  the  ordinary  way. 

Mr.  Speaker,  I  reserve  the  balance  of  my  time.  How  much  more 
time  have  I? 

Mr.  BARTLETT.  Mr.  Speaker,  I  would  like  to  ask  the  gentleman  a 
question. 

The  SPEAKER.    The  gentleman  has  seven  minutes  remaining. 

Mr.  DALZELL.  Then,  Mr.  Speaker,  I  reserve  the  balance  of  my  time. 
I  can  not  yield  any  more. 

Mr.  WILLIAMS.  Mr.  Speaker,  the  object  of  this  rule  is  to  make  points 
of  order  which  are  in  order  under  the  rules  of  the  House  out  of  order 
under  this  rule.  It  is  an  apt  illustration  and  object  lesson,  indeed,  of 


338  AMERICAN   FEDERAL   GOVERNMENT 

the  defectiveness  of  the  rules  of  the  House.  I  shall  not  consume  the 
time  of  the  committee  by  arguing  that  question.  Others  want  to  be 
heard,  and  I  shall  yield  to  them.  I  now  yield  five  minutes  to  the  gentle- 
man from  Illinois  [Mr.  Prince]. 

Mr.  BARTLETT.  Mr.  Speaker,  may  I  ask  the  gentleman  from  Missis- 
sippi a  question  before  he  sits  down  ? 

Mr.  WILLIAMS.  Mr.  Speaker,  I  do  not  want  to  consume  any  time  if 
I  can  help  it.  I  desire  to  yield  to  others. 

The  SPEAKER.  The  gentleman  from  Illinois  is  recognized  for  five 
minutes. 

Mr.  PRINCE.  Mr.  Speaker,  the  whole  trouble  that  the  House  is  now 
in  is  due  to  paragraph  2  of  Rule  XXI  of  the  House  of  Representatives, 
which  is  as  follows: 

No  appropriation  shall  be  reported  in  any  general  appropriation  bill,  or  be 
in  order  as  an  amendment  thereto,  for  any  expenditure  not  previously  author- 
ized by  law,  unless  in  continuation  of  appropriations  for  such  public  works 
and  objects  as  are  already  in  progress;  nor  shall  any  provision  changing  exist- 
ing law  be  in  order  in  any  general  appropriation  bill  or  in  any  amendment 
thereto. 

The  honorable  gentleman  from  Pennsylvania  [Mr.  Dalzell],  who  has 
just  taken  his  seat,  says  the  points  of  order  have  been  well  taken.  So 
much  for  the  obstructionists.  The  points  of  order  have  been  well  taken. 
Now,  what  does  the  chairman  of  the  committee  say?  On  page  4281  of 
the  Congressional  Record  of  March  23,  1906,  Mr.  Tawney  says: 

If  this  rule  is  to  be  enforced,  then  more  than  one-half  of  the  provisions  of 
this  bill  will  have  to  go  out. 

Properly  taken  !  More  than  one-half  of  it  is  to  go  out !  What  is  the 
rule?  "No  appropriation  shall  be  reported"  —  confessedly  in  order 
are  these  supposed  obstructionists.  "The  points  of  order  are  well  taken," 
says  the  gentleman  from  Pennsylvania.  The  chairman  of  the  committee 
says  that  half  of  it  will  go  out.  Why  did  he  knowingly,  willfully,  de- 
liberately, and  flagrantly  violate  the  rules  of  this  House  to  bring  in  a 
bill  of  which  he  himself  says  one-half  would  go  out  on  points  of  order 
if  they  were  made?  Now,  then,  let  us  turn  to  the  effect  of  the  rule. 
Here  is  a  rule  that  applies  to  one  Committee  on  Appropriations.  How 
many  appropriation  bills  are  there,  gentlemen  of  the  House  ? 

Look  at  your  Calendar  of  date  March  26,  1906,  and  you.  find  the  fol- 
lowing: Urgent  deficiency;  pensions;  fortifications;  Army;  Indian; 
legislative,  executive,  and  judicial ;  post-office;  agricultural;  diplomatic 
and  consular;  District  of  Columbia;  general  deficiency;  Military 
Academy;  naval;  public  buildings;  rivers  and  harbors,  and  sundry 
civil  appropriation  hills  —  sixteen  appropriation  bills  in  this  House. 


FINANCIAL  LEGISLATION  339 

If  this  provision  is  good  for  one  committee,  why  is  it  not  good  for  every 
committee  that  passes  appropriation  bills  in  this  House?  [Applause.] 
Will  you  tell  me  ?  I  say  now,  and  wait  for  answer,  if  the  Committee  on 
Rules  will  make  this  special  a  general  rule  that  will  apply  to  every  ap- 
propriation committee  of  this  House  I  will  vote  for  the  rule  now.  Will 
you  do  it?  What  answer  have  you  to  make  to  these  other  committees 
that  you  single  out  one  as  against  ten  others  ? 

What  is  your  reply  for  doing  it  when  you  confessedly  admit  your  bill 
is  out  of  order,  when  you  confessedly  admit  every  point  of  order  that 
has  been  made  against  the  bill  is  in  order  and  under  the  rules  of  this 
House?  Now,  who  have  passed  upon  the  objections?  Two  honorable 
Members  of  this  House,  none  higher  in  the  estimation  of  this  body  than 
those  two,  sitting  day  in  and  day  out  in  the  chair  as  Chairman  of  the 
Committee  of  the  Whole  House  on  the  state  of  the  Union.  The  honor- 
able gentleman  from  Pennsylvania  [Mr.  Olmsted]  held  time  after  time 
that  practically  every  one  of  those  points  of  order  are  in  order,  and  the 
provisions  had  to  go  out.  They  changed  horses  for  a  few  minutes,  and 
the  distinguished  Member  from  New  York  [Mr.  Payne]  took  the  chair, 
and  he  held  likewise  upon  these  very  same  provisions.  Where  is  the 
obstruction  ?  Now,  gentlemen  of  the  House,  let  me  say  this  to  you,  that 
we  are  all  here  as  Members.  You  have  heard  me  ask  the  Committee 
on  Rules  if  they  will  make  this  rule  a  general  rule  to  apply  to  your  com- 
mittees on  which  you  are  serving  and  the  committees  on  which  I  am 
serving.  They  have  not  said  they  would  do  it.  What  will  you  say  to 
your  constituents?  Will  you  vote  for  a  special  rule  which  allows  the 
increases  of  salaries,  changes  existing  law,  and  enacts  new  and  original- 
legislation  ?  What  will  you  say  to  the  committees  of  which  you  are  mem- 
bers, over  which  have  presided  for  more  than  a  hundred  years  some  of 
the  most  distinguished  men  who  have  sat  in  this  body 

The  SPEAKER.     The  time  of  the  gentleman  has  expired. 

Mr.  PRINCE.    I  ask  leave  to  extend  my  remarks  if  I  so  desire. 

The  SPEAKER.  The  gentleman  from  Illinois  asks  unanimous  consent 
to  extend  his  remarks  in  the  Record.  Is  there  objection  ?  [After  a  pause.] 
The  Chair  hears  none. 

Mr.  WILLIAMS.  Mr.  Chairman,  I  now  yield  five  minutes  to  the  gentle- 
man from  Missouri  [Mr.  De  Armond]. 

Mr.  DE  ARMOND.  Mr.  Speaker,  I  am  one  of  those  who  are  not  opposed 
to  suitable  legislation  upon  an  appropriation  bill.  I  am  opposed,  how- 
ever, to  this  way  of  getting  at  that  legislation.  It  would  be  very  easy, 
as  matters  now  stand,  to  have  every  item  in  this  appropriation  bill  con- 
sidered by  the  committee  and  by  the  House.  Of  course,  when  the  point 
of  order  is  made  it  is  the  duty  of  the  presiding  officer  to  rule  upon  that 
point  of  order,  under  the  rules.  A  point  of  order  against  new  legislation 
on  a  bill  like  this  is  a  good  point,  and  under  the  rules,  the  presiding  officer 
has  to  sustain  it.  Now,  when  the  point  of  order  is  sustained,  if  there  be 


340  AMERICAN   FEDERAL   GOVERNMENT 

real  occasion  for  the  legislation  proposed,  what  is  the  reason  that  the 
chairman  of  the  subcommittee  on  appropriations,  or  the  chairman  of 
the  Committee  on  Appropriations,  or  any  other  gentleman  favoring  the 
proposed  legislation,  should  not  frankly  admit  that  the  proposition  is 
obnoxious  to  the  rules,  but  that,  owing  to  its  merits,  owing  to  the  necessity 
for  legislation  at  the  time  and  of  the  kind  proposed,  the  rule  as  to  that 
item  ought  to  be  set  aside  and  the  particular  matter  proposed  ought  to 
be  enacted  into  law?  Upon  that  proposition,  with  a  majority  of  those 
present  sustaining  it,  the  item  would  remain  in  or  go  into  the  bill.  Now, 
that  is  a  very  much  safer  and  a  very  much  better  way  of  proceeding  than 
by  a  wholesale  rule,  an  omnibus  rule.  While  undoubtedly  there  are 
good  provisions  offered  in  this  bill  which  are  not  in  accord  with  existing 
law,  it  probably  is  not  saying  too  much  to  say  that  there  are  also  bad 
provisions  offered,  also  not  in  accordance  with  existing  law.  In  the  case 
of  a  good  provision,  a  necessary  provision,  upon  appeal  to  the  House  it 
is  reasonable  to  believe  that  the  House  would  sustain  the  appeal,  and 
would  enact  the  good  provision  —  would  put  it  into  the  bill  or  retain  it 
in  the  bill. 

Every  provision  offered  in  the  way  of  new  law,  everything  obnoxious 
to  the  rules  of  the  House,  is  protected  and  covered  by  this  rule;  every- 
thing suggested  by  the  Committee  on  Appropriations  and  incorporated 
in  the  bill,  including  those  items  that  were  opposed  and  knocked  out  — 
all  are  legitimized.  Provisions  already  eliminated  are  to  be  brought 
forward,  and  no  point  of  order  shall  be  tolerated  against  any  of  them 
or  against  anything  in  the  bill  except  section  8,  when,  no  matter  how 
meritorious  a  proposition  offered  from  the  floor  may  be,  the  rules  may 
be  invoked  against  it;  and  if  it  be  a  change  of  existing  law,  or  a  pro- 
posed change  of  existing  law,  it  must  be  denied  consideration. 

This  rule  is  neither  in  the  interest  of  good  legislation,  nor  is  it  fair. 
Allow  the  rules  to  stand,  if  you  will ;  you  made  them,  made  them  without 
consideration,  without  giving  opportunity  for  any  particular  considera- 
tion. When  you  see  proper  to  set  aside  one  of  them,  or  any  order  of  this 
House  with  reference  to  any  particular  piece  of  legislation,  appeal  direct 
to  the  judgment  of  the  House,  and  if  the  judgment  of  the  House  sustains 
you  the  rules  will  be  waived  for  the  time  being,  and  the  meritorious  piece 
of  legislation  will  be  incorporated  in  the  bill;  and  let  that  apply  not 
only  to  the  Committee  on  Appropriations  —  that  one  committee  to  be 
singled  out  for  favor  over  all  other  committees  —  but  let  it  apply  to  all 
the  other  committees,  and  let  it  apply  also  to  the  entire  membership  of 
the  House.  Whenever  a  proposition  is  offered  from  anywhere  and  ruled 
out  as  new  legislation,  if  the  proponent  of  it,  or  anybody  else,  sees  proper 
to  ask  the  judgment  of  the  House  upon  this  proposition,  and  if  the  ma- 
jority see  proper  to  incorporate  it,  let  the  rules  be  then  and  there  set 
aside  as  to  that  matter,  and  let  it  be  incorporated.  There  is  neither 
necessity  for  nor  propriety  in  this  rule ;  it  is  dangerous  in  its  tendency, 


FINANCIAL  LEGISLATION  341 

and  will  be  bad  in  its  effect.  [Loud  applause  on  the  Democratic 
side.] 

Mr.  WILLIAMS.  I  will  ask  the  gentleman  from  Pennsylvania  to  con- 
sume some  of  his  time. 

Mr.  DALZELL.    I  propose  to  close  on  this  side. 

The  SPEAKER.  The  gentleman  from  Pennsylvania  has  seven  minutes 
and  the  gentleman  from  Mississippi  ten  minutes. 

Mr.  WILLIAMS.  I  yield  five  minutes  to  the  gentleman  from  Georgia 
[Mr.  Hard  wick]. 

Mr.  HARDWICK.  Mr.  Speaker,  it  is  perfectly  apparent  that  one  of 
two  things  is  true.  Either  the  bill  is  wrong  or  the  rule  is  wrong.  If  the 
rule  is  wrong,  this  bill  ought  to  pass,  and  the  rule  ought  to  be  repealed ; 
and  if  the  rule  is  wrong,  then  the  rule  ought  to  be  repealed,  so  that  any 
bill  can  pass. 

I  do  not  think,  Mr.  Speaker,  that  there  has  ever  been  in  the  legislative 
history  of  the  country  such  a  measure  proposed  as  that  contained  in  this 
rule.  I  want  to  make  the  statement  here  in  my  place  that  never  before 
in  the  history  of  the  American  Congress  has  such  a  proposition  been 
made  to  any  House  of  Representatives  as  that  contained  in  this  rule. 
There  are  two  or  three  precedents  in  which  the  Committee  on  Rules 
have  taken  some  one  single  proposition  and  passed  a  rule  to  make  a  matter 
in  order  when  a  point  of  order  would  lie  against  it  and  had  been  urged 
against  it.  In  the  second  session  of  the  Fifty-second  Congress  such  a 
provision  was  made  by  the  Committee  on  Rules  on  one  single  proposi- 
tion, namely,  the  creation  of  a  commission  to  investigate  the  various 
Executive  Departments  of  the  Government.  In  the  last  session  of  the 
Fifty-eighth  Congress  we  had  another  rule  from  the  committee,  authoriz- 
ing the  committee  to  consider  an  increase  in  the  salary  of  the  rural 
carriers,  and  we  had  the  same  proposition  at  the  second  session  of  the 
Fifty-seventh  Congress  on  a  bill  providing  for  the  levying  of  a  personal 
tax  in  the  District  of  Columbia.  Each  one  of  these  propositions  was 
segregated  and  distinct,  and  the  House  of  Representatives  understood 
what  it  was  voting  for.  Now,  in  this  proposition,  by  this  omnibus  rule, 
we  are  offered  what?  To  make  everything  in  order,  involving  forty- 
seven  separate  paragraphs,  involving  a  general  increase  of  appropria- 
tions ;  thirty-eight  separate  paragraphs,  involving  different  amounts  of 
increase  of  salary ;  in  other  words,  in  my  humble  judgment  —  and 
I  have  investigated  it  to  some  extent  —  you  are  proposing  by  this  rule  to 
legalize  about  seven  hundred  things  that  would  not  be  legal  if  this  rule 
did  not  pass. 

No  member  of  the  Committee  on  Rules  and  no  Member  of  this  House 
who  votes  for  this  rule  will  know  what  on  earth  he  is  voting  for.  Now, 
if  we  are  going  to  let  the  Committee  on  Appropriations  have  certain 
special  rights  to  pass  any  legislation  as  riders  on  appropriation  bills  — 
new  legislation  —  let  us  have  the  same  rights  for  everybody.  Why 


342  AMERICAN   FEDERAL   GOVERNMENT 

should  we  not  ?  I  want  to  call  the  attention  of  the  House  to  the  fact  that 
during  the  progress  of  the  consideration  of  the  pending  bill,  the  gentle- 
man from  Mississippi  [Mr.  Humphreys]  arose  and  asked  that  the  House 
be  allowed  to  vote  on  a  simple  proposition,  viz.,  that  the  internal-revenue 
offices  of  the  Government  should  be  required  to  furnish  certified  copies 
of  their  records  to  any  coordinate  court,  State  or  Federal,  to  be  used  as 
evidence,  as  to  what  licenses  had  been  taken  out  for  the  sale  of  liquor. 
That  proposition  had  been  recommended  by  the  unanimous  vote  of 
just  as  strong  a  committee  as  the  Appropriations  Committee,  to  wit, 
the  Ways  and  Means  Committee;  and  yet  the  gentleman  from  New 
York  [Mr.  Littauer],  in  charge  of  this  bill,  made  the  point  of  order  against 
that  and  insisted  upon  it.  Now,  I  say  this  is  not  fair.  There  are  good 
reasons  why  riders  putting  new  legislation  to  appropriation  bills  ought 
not  to  be  allowed.  Under  the  rules  of  the  House  100  Members  constitute 
a  quorum  in  Committee  of  the  Whole,  and  fifty-one  Members  may,  if 
this  sort  of  thing  be  kept  up,  enact  all  sorts  of  legislation.  Indeed,  I 
have  seen  thirty-six  members  of  the  Committee  of  the  Whole  decide  a 
question,  less  even  than  a  quorum  of  the  committee.  But  even  if  the 
rules  are  invoked,  fifty-one  Members  —  less  than  one-seventh  of  the 
membership  of  the  House  —  can  decide  a  question  in  committee.  There 
are  good  reasons  back  of  Rule  XXI  and  it  ought  to  be  enforced.  I 
understand  the  Senate  has  no  such  rule,  and  it  may  be  that  when  these 
propositions  are  meritorious  they  will  be  restored  in  the  Senate.  With 
that  I  am  not  concerned ;  but  I  say  that  our  general  rule  is  a  good  one  and 
it  ought  to  be  enforced,  and  that  it  ought  not  to  be  varied  simply  because 
certain  gentlemen  want  to  pass  legislation  to  suit  themselves,  or  because 
a  certain  committee  wants  to  do  about  seven  hundred  things  that  the 
law  will  not  allow  them  to  do,  in  their  own  way.  [Applause.] 

Mr.  WILLIAMS.  Mr.  Speaker,  I  now  yield  three  minutes  to  the  gentle- 
man from  New  York  [Mr.  Driscoll]. 

Mr.  DRISCOLL.  Mr.  Speaker,  this  is  a  very  extraordinary  method  of 
attempting  to  pass  a  very  ordinary  bill.  A  measure  similar  to  this,  mak- 
ing appropriations  for  the  legislative,  executive,  and  judicial  expenses 
of  the  Government,  is  passed  every  year  without  any  unusual  friction 
and  without  appealing  to  the  Committee  on  Rules  for  assistance.  This 
bill  was  debated  during  several  days,  and  when  the  reading  was  com- 
menced under  the  five-minute  rule  the  Committee  on  Appropriations 
found  itself  in  trouble.  Subdivision  2  of  Rule  XXI  of  the  Rules  of  the 
House  of  Representatives  is  as  follows: 

No  appropriation  shall  be  reported  in  any  general  appropriation  bill,  or  be 
in  order  as  an  amendment  thereto,  for  any  expenditure  not  previously  author- 
ized by  law,  unless  in  continuation  of  appropriations  for  such  public  works 
and  objects  as  are  already  in  progress;  nor  shall  any  provision  changing  exist- 
ing law  be  in  order  in  any  general  appropriation  bill  or  in  any  amendment 
thereto. 


FINANCIAL  LEGISLATION  343 

A  few  Members  of  this  House  on  both  sides  of  the  Chamber  examined 
the  bill  with  considerable  care  and  they  found  that  this  rule  of  the  House 
was  violated  in  almost  every  section ;  that  many  appropriations  of  small 
and  large  amounts  were  reported  in  the  bill  which  were  not  previously 
authorized  by  law,  and  that  there  were  in  it  several  provisions  changing 
existing  law.  These  were  all  obnoxious  to  the  rule  and  liable  to  be 
stricken  out  on  points  of  order.  The  gentlemen  who  examined  the 
statutes  and  this  bill  commenced  to  raise  these  points  of  order  against 
increases  of  salaries  and  clerks  and  other  provisions  increasing  expendi- 
ture, and  also  against  the  new  provisions  changing  existing  law.  In  my 
judgment,  those  gentlemen  who  have  given  much  time  and  attention  to 
this  matter  and  have  sat  here  day  after  day  insisting  that  the  rule  be 
observed  have  been  rendering  a  signal  service,  not  only  to  the  other 
Members  of  this  House,  but  to  the  country.  For  their  courage  or  temer- 
ity, if  we  may  so  describe  it,  they  are  entitled  to  great  credit,  because 
there  is  altogether  too  much  of  "you  tickle  me  and  I'll  tickle  you"  in 
this  appropriation  business.  That  is  why  the  expenditures  increase  from 
year  to  year,  and  it  is  practically  impossible  to  keep  them  down.  Not 
every  Member,  especially  if  there  is  in  the  appropriation  bill  some  bene- 
fit for  his  district  or  constituents,  wishes  to  object  to  any  other  appropria- 
tion, no  matter  how  extravagant  or  unreasonable.  Therefore  these 
gentlemen  are  entitled  to  the  thanks  of  the  country  for  their  courageous 
and  unselfish  action  in  behalf  of  the  Treasury. 

After  a  few  objections  of  this  character  were  made  the  distinguished 
chairman  of  the  Appropriations  Committee,  in  an  able  and  vigorous 
speech,  undertook  to  criticise  and  censure  those  gentlemen  for  objecting, 
and  attempted  to  arouse  public  sentiment  in  the  House  against  them. 
In  this  he  failed,  for  they  continued  to  raise  points  of  order,  which  were 
sustained  by  the  Chair.  The  gentleman  from  New  York,  who  has 
charge  of  this  bill,  undertook  to  lash  one  of  the  objectors  —  the  gentle- 
man from  Illinois  [Mr.  Prince]  —  into  silence  by  twitting  him  about  a 
little  crumb  of  patronage  in  the  form  of  a  janitorship.  This  did  not 
avail,  and  later  on  another  member  of  the  Appropriations  Committee 
took  the  floor,  raised  the  white  flag  of  truce,  and,  in  a  most  conciliatory 
address,  sued  for  peace ;  and  that  failed  to  accomplish  the  object  desired. 
Now,  these  gentlemen  throw  up  their  hands  and  surrender  at  discretion, 
and  acknowledge  that  they  can  not  pass  an  ordinary  appropriations 
bill  under  the  ordinary  rule  which  has  obtained  for  many  years,  and 
have  applied  to  the  all-powerful  Committee  on  Rules  for  a  special  rule 
or  resolution  giving  them  extraordinary  powers  and  privileges.  Why? 
Is  it  claimed  that  the  Chairman  of  the  Committee  of  the  Whole  House 
who  presides  during  the  consideration  of  this  bill  is  unfair  or  partial? 
He  has  had  before  him  the  book  of  rules,  and  has  ably  and  honestly 
applied  them  to  each  point  of  order  raised ;  and  a  gentleman  stands  at 
his  elbow  who  writes  and  revises  the  book,  and  who  the  Speaker  said 


344  AMERICAN  FEDERAL   GOVERNMENT 

could  give  any7  man  on  the  floor  of  the  House  cards  and  spades  and  beat 
him  in  parliamentary  law.  Now,  what  is  the  trouble?  The  gentlemen 
in  charge  of  this  bill  do  not  assert  that  they  have  not  received  fair  treat- 
ment in  the  consideration  and  application  of  the  rule,  and  admit  that  a 
very  large  part  of  this  appropriation  bill  will  have  to  be  stricken  out  if 
the  rule  be  insisted  on.  The  conclusion  is  forced  on  every  Member  of 
this  House  that  the  rule  is  a  very  bad  one,  or  the  bill  is  a  very  bad  one. 
If  the  rule  is  insufficient  and  antiquated,  let  it  be  amended  or  repealed. 
If  the  rule  is  a  good  one,  let  it  be  applied.  If  the  bill  is  an  extravagant 
one,  let  it  be  trimmed  down  to  come  within  the  limitations  of  the  law. 

That  is  the  best  way  to  determine  whether  it  is  a  good  or  bad  measure. 
And  the  best  way  to  determine  whether  a  rule  or  law  is  good  or  bad  is 
by  its  enforcement.  Let  the  law  be  applied.  Let  the  rule  be  enforced. 
Let  the  balance  of  this  bill  be  read,  and  let  the  gentlemen  who  are  rais- 
ing points  of  order  continue  to  do  so  and  hew  to  the  line  and  let  the  chips 
fall  where  they  may.  When  it  is  concluded  the  country  at  large  will  be 
informed  how  much  of  this  bill  is  in  violation  of  law,  how  much  of  it 
represents  extravagance,  and  how  much  of  it  is  padded,  and  the  Members 
of  this  body  will  be  enlightened  as  to  the  wisdom  of  maintaining  the  rule. 

In  ordinary  proceedings  in  this  House  this  rule  is  invoked  more  per- 
haps than  any  other,  and  we  have  from  time  to  time  been  told  that  for 
the  proper  discharge  of  business  and  for  the  sake  of  economy  and  wise 
legislation,  it  is  necessary  and  should  be  maintained  in  its  full  force  and 
vigor.  If  any  Member  of  the  House  suggested  to  the  Appropriations 
Committee  that  the  number  of  clerks  in  a  bureau  be  increased  or  the 
salary  of  any  employee  be  advanced,  and  it  did  not  suit  them,  he  was 
told  very  politely  that  it  was  unauthorized  by  existing  law  and  would  be 
stricken  out  on  a  point  of  order,  and  he  subsided  gracefully  in  deference 
to  the  rule.  These  gentlemen,  who  have  disposed  of  so  many  applica- 
tions by  invoking  the  rule,  should  be  the  last  to  seek  relief  from  the 
force  of  its  application.  They  should  be  willing  to  take  their  own 
medicine. 

There  are  perhaps  fifteen  other  committees  of  this  House  who  bring 
in  appropriation  bills  and  are  expected  to  have  them  enacted  into  law. 
Why  should  this  rule  be  suspended  as  to  this  committee  and  this  appro- 
priation bill  and  enforced  as  to  all  the  others  ?  If  a  good  rule,  why  should 
it  not  be  enforced  as  to  all  ?  If  a  bad  rule,  why  should  it  not  be  suspended 
as  to  all? 

There  are  386  Members  of  this  House,  and  only  17  of  them  are  on 
the  Appropriations  Committee.  Under  this  special  resolution  or  rule 
sought  to  be  adopted  here  no  further  points  of  order  can  be  raised.  No 
objections  can  be  made  no  matter  how  many  appropriations  there  are 
in  it  which  are  unauthorized  by  existing  law.  Thus  the  Appropriations 
Committee  will  be  permitted  to  submit  to  the  consideration  of  the  House 
all  amendments  they  have  inserted  in  the  bill  which  will  increase  salaries 


FINANCIAL  LEGISLATION  345 

• 

and  employees,  while  if  any  other  Member  offers  an  amendment  for  the 
same  purpose,  it  will  be  ruled  out  on  a  point  of  order.  If  you  insist  on 
suspending  this  rule  in  its  application  to  the  Appropriations  Committee, 
why  not  suspend  it  in  its  application*  to  all  the  Members  and  let  each  of 
them  have  the  same  privilege  of  offering  amendments  whether  within 
the  provisions  of  existing  law  or  not?  Why  should  not  each  Member 
have  the  privilege  and  opportunity  of  offering  an  amendment  and  having 
it  considered  on  the  merits  without  being  ruled  out  on  a  point  of  order, 
which  privilege  and  opportunity  will  be  accorded  the  Appropriations 
Committee  under  this  proposed  resolution?  The  ordinary  Member  of 
the  House  is  sufficiently  hampered  and  circumscribed  already.  Many 
of  you  have  been  complaining  and  wincing  under  the  application  of  the 
rules  in  force.  If  you  adopt  this  resolution,  you  will  surrender  one  of 
the  prerogatives  vouchsafed  you.  You  will  tie  yourselves  hand  and  foot 
and  deliver  yourselves  bound  and  gagged  into  the  power  of  the  Appro- 
priations Committee.  So  far  as  practical  results  go,  you  may  as  well  go 
home  and  send  so  many  wooden  Indians  in  your  places.  [Applause.] 

This  proposed  legislation  should  not  be  adopted.  We  should  stand 
by  the  rule  in  force,  which  seems  to  have  served  its  purpose  pretty  well 
in  the  past  and  avoided  much  unnecessary  extravagance.  This  seems 
to  be  a  " stand-pat"  Congress.  Only  yesterday  the  distinguished  gentle- 
man from  New  York,  chairman  of  the  Committee  on  Ways  and  Means, 
in  a  very  able  and  eloquent  address,  notified  the  Members  of  this  House 
and  the  whole  country  that  there  will  be  no  revision  of  the  tariff  schedules ; 
that  this  House  will  stand  pat.  For  the  sake  of  consistency,  for  the  sake 
of  economy  in  the  public  service,  and  for  the  protection  of  our  own  rights 
and  dignity  as  individual  Members  of  this  body  let  us  "stand  pat"  on  the 
existing  rule  and  reject  this  resolution. 

The  SPEAKER.    The  time  of  the  gentleman  has  expired. 

Mr.  WILLIAMS.  I  yield  the  two  remaining  minutes  to  the  gentleman 
from  New  York  [Mr.  Fitzgerald]. 

Mr.  FITZGERALD.  Mr.  Speaker,  while  I  have  no  sympathy  with  the 
action  of  the  gentlemen  who  have  been  taking  matters  out  of  the  legis- 
lative bill  without  regard  to  their  merits,  yet  I  do  not  favor  this  rule. 
It  is  more  sweeping  in  its  character  than  I  have  been  able  to  find  in  a 
search  of  the  precedents.  It  makes  it  possible  to  keep  in  this  bill  inde- 
fensible increases  of  salary  for  favorites  of  some  men  in  this  House, 
while  those  who  are  without  influence  are  ignored  entirely.  The  com- 
mittee, indeed,  might  be  said  to  have  been  tyrannical  in  reporting  this 
bill,  because,  in  defiance  of  the  rules,  points  of  order  submitted  in  com- 
mittee were  ignored,  although  the  rules  of  the  House  are  binding  there, 
and  matters  that  should  not  be  in  the  bill  are  in  it  and  are  going  to  be 
continued  in  it  under  this  rule.  There  are  other  legislative  provisions 
equally  indefensible,  equally  offensive,  equally  as  important  for  separate 
consideration  as  section  8;  and  yet  the  Committee  on  Rules,  without 


346  AMERICAN   FEDERAL   GOVERNMENT 

• 

knowing  what  is  in  the  bill,  includes  the  good  with  the  bad  and  compels 
the  House  to  consider  on  this  bill  provisions  with  which  few  of  the 
Members  are  familiar. 

If  this  rule  was  framed  so  that*  these  matters  of  importance  —  the 
matters  that  had  real  merit  —  would  be  considered  in  this  way,  I  would 
gladly  support  this  rule,  but  unless  this  rule  is  so  framed  that  other 
committees  with  appropriating  powers  are  permitted  to  report  legisla- 
tion and  have  it  considered,  the  exception  should  not  be  made  in  this 
case. 

This  rule  —  Rule  XXI,  under  which  the  points  of  order  have  been 
made  —  is  of  great  importance  and  value,  having  originated  in  1837, 
or  else  it  is  absolutely  worthless.  If  it  is  worthless,  it  should  be  modified 
to  meet  the  changed  conditions.  In  my  judgment,  the  action  of  these 
two  gentlemen,  of  which  complaint  is  made,  while  it  has  done  great  harm 
in  some  instances,  yet  they  have  effected  considerable  good  in  the  position 
they  have  taken  during  the  past  few  days.  It  would  be  an  extraordinary 
thing  to  permit  the  Committee  on  Appropriations,  of  which  I  happen 
to  be  a  member,  to  say  that  increases  of  salaries  for  certain  persons  should 
be  considered  in  order  on  the  legislative  bill  while  increases  for  other 
men  who  have  no  friends  could  not  be  considered.  [Applause.] 

Mr.  DALZELL.  Mr.  Speaker,  I  now  yield  the  balance  of  my  time  to  the 
gentleman  from  Ohio  [Mr.  Grosvenor]. 

Mr.  GROSVENOR.  Mr.  Speaker,  the  rule  of  the  House  which  has 
been  so  often  invoked  by  the  gentleman  from  Georgia  [Mr.  Hardwick] 
and  the  gentleman  from  Illinois  [Mr.  Prince]  is  an  old  and  time-honored 
rule  of  the  House.  It  was  not  made  by  a  Republican  House ;  it  originated 
in  a  Democratic  House.  I  found  it  in  active  operation  when  I  came 
here  twenty  years  ago,  and  it  has  been  pretty  effectually  enforced  ever 
since.  On  the  present  occasion  I  wish  first  to  state,  so  that  the  Mem- 
bers of  the  House  will  not  be  misled,  that  the  proposed  rule  operates 
upon  provisions  subject  to  a  point  of  order  made  against  them  in  the 
pending  bill  in  this  way:  In  the  first  place,  it  leaves  exactly  where  we 
find  it  all  that  part  of  the  bill  which  relates  to  aged  or  superannuated 
clerks  that  has  gone  out  of  the  bill,  and  it  is  not  proposed  to  put  it  back 
into  the  bill  by  the  operation  of  this  rule. 

Mr.  KEIFER.    That  provision  has  not  yet  gone  out. 

Mr.  GROSVENOR.  It  has  gone  out  under  the  rules  as  effectually  as  if 
it  had  never  been  put  in.  The  various  rulings  of  the  Chair  have  that 
effect.  Now,  what  next?  The  next  operation  is  to  make  it  in  order 
that  the  other  provisions  of  the  bill,  to  which  exceptions  have  been  taken 
and  which  have  been  sustained  by  the  Chairman,  will  still  be  in  order, 
but  subject  to  the  action  of  the  House  upon  each  one  of  these  pro- 
visions separately.  So  that  a  majority  of  the  Committee  of  the  Whole 
House  can  either  adopt  one  of  these  provisions,  or  amend  one  of 
these  provisions,  or  reject  it  altogether.  It  simply  affords  the  House 


FINANCIAL  LEGISLATION  347 

the  full  opportunity  to  pass  upon  every  one  of  these  objectionable 
provisions. 

Mr.  Speaker,  the  Committee  on  Appropriations,  after  very  careful 
study,  apparently  —  and  I  think  I  may  safely  say  so  —  have  brought 
here  a  provision  that  looks  to  me,  and,  I  think,  looks  to  gentlemen  even 
on  the  other  side,  as  a  proposition  of  great  improvement,  as  it  will  com- 
pletely reorganize  certain  of  the  clerical  forces  of  the  various  Depart- 
ments here.  It  is  true  it  comes  here  without  the  sanction  of  the  rule  of 
the  House.  The  gentleman  from  Illinois  [Mr.  Prince]  seems  to  take  it 
for  granted  that  to  bring  a  bill  into  the  House  with  a  paragraph  or  sec- 
tion in  it  obnoxious  to  the  rule  of  the  House  is  a  sort  of  parliamentary 
crime,  a  crime  for  which  the  Committee  on  Appropriations  ought  to  be 
indicted.  Why,  I  have  never  known  of  an  appropriation  bill  of  any 
considerable  length  that  did  not  have  some  provision  in  it  that  was  held 
by  the  Chairman  to  be  obnoxious  to  the  rule  that  has  been  invoked  here 
against  provisions  of  the  pending  bill. 

Mr.  Speaker,  here  is  what  we  have  got  to  meet:  We  must  abandon 
our  proposition  of  reform  and  improvement  and  send  a  bill  to  the  Senate 
that  would  be  disgraceful  to  the  House  of  Representatives  —  a  bill  that 
does  not  and  would  not  provide  for  any  considerable  completeness  in 
the  appropriations  —  or  else,  having  ascertained  what  ought  to  be  done, 
we  temporarily  set  aside  this  rule  for  the  purpose  of  doing  exactly 
what  the  House  of  Representatives  will  decide  ought  to  be  done. 
It  is  not  a  revolutionary  proposition;  it  is  a  proposition  looking  to 
the  action  of  the  House  itself,  an  action  which  they  may  just  as  well 
take  in  this  form  as  to  take  it  in  some  other  form.  How  can  you 
get  this  proposition  before  the  House  anywhere  else  during  this  session 
of  Congress  than  in  an  appropriation  bill  and  in  this  appropriation  bill  ? 

There  is  a  large  number  of  appropriations  for  salaries  of  clerks  em- 
ployed in  the  various  bureaus  of  the  Government  that  have  gone  out  of 
the  bill  under  the  ruling  of  the  Chair,  which  was  a  proper  ruling  and  had 
to  be  made.  Now,  shall  we  stumble  about  here  and  act  unwisely  and 
inconsiderately,  or  shall  we  take  up  these  amendments  one  by  one  and 
act  wisely  and  judiciously  and  in  keeping  with  a  rule  of  the  House  that 
is  higher  than  a  written  rule  in  the  books?  Gentlemen  seem  to  think 
that  this  action  in  the  House  is  in  some  way  or  other  revolutionary.  It 
is  just  as  exactly  and  as  completely  in  order  and  just  as  proper  as  it 
would  be  to  create  a  new  rule.  Gentlemen  say,  "Send  the  rule  back 
to  the  Committee  on  Rules  and  let  them  make  a  new  rule."  That  is 
no  more  in  consonance  with  good  judgment  and  wise  legislation  than 
will  be  the  correction  of  the  difficulty  by  this  action,  this  temporary 
action,  upon  this  particular  appropriation  bill.  Mr.  Speaker,  this  is 
the  shortest  and  best  way  to  give  to  the  House  a  fair  opportunity  to  be 
heard  upon  every  one  of  these  propositions  and  to  act  intelligently  and 
wisely.  Therefore  I  think  that  gentlemen  who  have  delayed  this  bill 


348  AMERICAN  FEDERAL   GOVERNMENT 

all  these  days  ought  not  now  to  appeal  to  the  House  to  destroy  the  bill 
and  compel  it  to  go  back  to  the  Committee  on  Appropriations  to  have 
a  new  investigation  and  a  new  bill.  [Applause.] * 


MR.   TAWNEY   ON   URGENT   DEFICIENCIES2 

MR.  TAWNEY.  Prior  to  the  Fifty-eighth  Congress  deficiencies  in 
appropriations  made  for  the  public  service  had  become  so  common  and 
had  increased  to  such  an  extent  that  that  Congress  deemed  it  essential 
to  enact  legislation  to  prevent  such  deficiencies.  Theretofore  many  of 
the  Executive  Departments  proceeded  on  the  theory  that  they,  and  not 
Congress,  should  fix  the  standard  of  public  expenditure,  and  if  the 
amount  appropriated  for  the  service  under  their  jurisdiction  was  not  in 
their  judgment  adequate,  they  proceeded  to  expend  the  appropriation 
upon  the  basis  of  their  estimates  and  then  at  the  next  session  of  Con- 
gress would  submit  deficiency  estimates  which,  if  not  allowed,  would 
necessitate  the  suspension  of  the  service. 

It  was  this  practice  which  prompted  a  distinguished  Cabinet  officer 
during  this  session  to  state  before  the  Committee  on  Appropriations 
that  this  policy  was  the  policy  of  coercive  appropriations  and  should  be 
stopped.  In  view  of  these  increasing  deficiency  estimates  the  chairman 
of  the  Committee  on  Appropriations,  the  Hon.  James  A.  Hemenway, 
now  serving  in  the  United  States  Senate,  reported  in  one  of  the  general 
appropriation  bills  at  the  last  session  of  the  Fifty-eighth  Congress  a 
provision  requiring  the  heads  of  the  Departments  at  the  beginning  of 
each  fiscal  year  to  apportion  appropriations,  by  monthly  allotment, 
or  otherwise,  so  as  to  prevent  a  deficiency,  and  that  such  apportion- 
ment when  made  could  not  be  waived  except  by  the  head  of  the 

1  Commentary  of  the  New  York  Evening  Post  upon  this  legislative  incident : 

All  students  of  legislation  have  agreed  in  denouncing  the  Congressional  practice  of 
passing  general  legislation  as  part  of  the  appropriation  bills.  This  year,  at  the  hands 
of  a  group  of  embattled  members,  the  House  of  Representatives  got,  as  the  phrase  is, 
"just  what  was  coming  to  it."  Out  of  a  difficulty  of  its  own  creation  it  extricates  itself 
by  an  action  which,  however  "practical,"  is  without  justification  in  logic,  law  or  precedent. 
In  the  face  of  the  absolutely  definite  rule  against  expenditures  not  authorized  by  existing 
law,  the  Appropriations  Committee  has  followed  its  own  sweet  will  so  far  that  the  Legis- 
lative, Executive,  and  Judicial  bill  has  been  "riddled  "  by  perfectly  valid  points  of  order, 
and  can  be  saved  only  by  a  special  rule  to  the  effect  that  it  shall  be  passed  whether  legal 
or  illegal.  The  point  of  order  in  Congress  has  long  been  regarded  simply  as  a  club. 
The  speaker  does  not  enforce  the  rule  against  new  legislation  or  provisions  not  germane 
unless  somebody  brings  the  case  to  his  attention.  Thus  many  of  the  most  necessary  bills, 
as  in  the  present  instance,  come  upon  the  floor  in  a  shockingly  vulnerable  state.  As  for 
the  extraordinary  expedient  adopted  to  save  the  measure,  we  hope  the  incident  will 
merely  be  a  salutary  warning  to  the  House,  and  not  the  beginning  of  a  line  of  precedent 
that  will  still  further  tighten  the  grip  of  the  Speaker  and  the  Rules  Committee  upon  the 
organization. 

2  Congr.  Record,  reported  July  2,  1906. 


FINANCIAL  LEGISLATION  349 

Department.  The  waiver  was  required  to  be  in  writing,  stating  the 
reasons  therefor. 

At  the  beginning  of  this  session,  when  the  deficiency  estimates  were 
presented,  it  was  discovered  that  this  act  was  defective  in  that  it  did  not 
restrict  the  waiver  of  the  apportionment  beyond  the  giving  of  a  reason. 
This  enabled  the  head  of  the  Department  to  waive  the  apportionment 
for  any  reason,  and  proceed  to  expend  the  appropriation  regardless  of 
whether  such  expenditure  would  create  a  deficiency  or  not.  In  some 
instances  it  was  stated  as  a  reason  for  waiving  the  apportionment  that 
Congress  had  failed  to  appropriate  the  amount  estimated  by  the  Depart- 
ment to  be  necessary  for  a  specific  service,  and  the  amount  appropriated 
for  the  entire  year  having  been  practically  all  expended  at  the  end  of  the 
third  quarter,  Congress  was  obliged  to  appropriate  for  the  remaining 
quarter  or  suspend  the  service. 

To  correct  this,  and  to  prevent  the  Departments  from  determining 
how  much  should  be  expended  for  the  public  service  regardless  of  the 
amount  appropriated,  the  first  appropriation  bill  reported  at  this  session 
of  Congress  amended  this  so-called  anti-deficiency  law  by  expressly 
providing  that  the  apportionment,  when  made,  shall  not  be  waived 
except  upon  the  happening  of  some  emergency  or  unusual  circumstance 
which  could  not  be  reasonably  anticipated  at  the  time  of  making  the 
apportionment.  While  the  law  as  it  was  enacted  by  the  Fifty-eighth 
Congress  had  a  very  salutary  effect  in  preventing  deficiencies,  as  it 
enabled  this  Congress  to  reject  many  deficiencies  that  otherwise  might 
have  been  appropriated  for,  nevertheless  it  is  believed  that  this  law  as 
amended  at  this  session  will  practically  wipe  out  all  deficiencies  in  annual 
appropriations  that  must  be  apportioned,  except  in  case  of  an  emergency 
or  other  unusual  circumstance  which  could  not  be  anticipated  either  by 
the  Department  or  by  Congress. 

The  penalties  which  are  imposed  by  this  law  on  account  of  the  failure 
to  comply  with  it  are  such  that  it  is  believed  that  those  who  are  charged 
with  the  responsibility  of  expending  appropriations  will  so  administer 
the  service  under  their  jurisdiction  as  to  keep  their  expenditures  within 
the  amounts  appropriated  for  the  entire  year. 

There  have  been  reported  in  other  appropriation  bills  many  legislative 
provisions,  many  of  which  have  been  enacted  into  law,  restrictive  in 
their  character  and  imposing  limitations  upon  departmental  officers 
that  will  tend  to  improve  administrative  methods  and  effect  economy 
in  the  public  expenditures. 

One  provision  reported  in  the  legislative,  executive  and  judicial  ap- 
propriation bill  is  worthy  of  special  mention.  It  is  the  provision  enacted 
to  put  a  stop  to  the  practice  of  the  several  Executive  Departments  of 
the  Government  competing  with  each  other  for  clerical  services.  It 
will  have  the  effect  also  of  preventing  the  demoralization  which  now 
happens  as  a  result  of  clerks,  as  soon  as  they  are  appointed  in  one  De- 


350  AMERICAN   FEDERAL   GOVERNMENT 

partment,  seeking  positions  in  another  Department  where  the  compen- 
sation is  greater  than  that  in  the  Department  in  which  they  are  employed. 
This  provision  prohibits  the  transfer  of  any  clerk  from  one  Department 
to  another  until  he  has  served  in  the  Department  from  which  he  desires 
to  be  transferred  at  least  three  years. 

Another,  and  still  more  important  provision,  as  viewed  by  the  Com- 
mittee on  Appropriations,  is  the  one  which  is  now  a  law  as  a  part  of  the 
Sundry  Civil  appropriation  Act,  requiring  the  heads  of  each  Department 
in  the  future  to  report  to  the  Secretary  of  the  Treasury,  within  thirty 
days  after  the  close  of  every  fiscal  year,  a  statement  of  all  money  received 
by  them  during  the  previous  fiscal  year  for  or  on  account  of  the  public 
service  or  in  any  other  manner  in  the  discharge  of  their  official  duties, 
other  than  as  salaries  or  compensation,  which  was  not  paid  into  the 
general  Treasury  of  the  United  States,  together  with  a  detailed  account 
of  all  payments,  if  any  made  from  such  funds  during  said  year. 

It  was  ascertained  by  the  Committee  on  Appropriations  in  the  course 
of  its  investigations  that  in  some  fiscal  years  many  millions  of  dollars, 
representing  proceeds  of  public  property  or  money  derived  from  some 
source  no  account  of  the  public  service  was  being  handled  by  Depart- 
ment officials  without  any  account  of  the  same  being  taken  as  a  part  of  the 
receipts  or  expenditures  of  the  Government.  The  fact  that  no  dishon- 
esty or  irregularity  has  occurred  because  of  this  unbusiness-like  method 
in  the  public  service  did  not  argue,  in  the  opinion  of  the  committee, 
that  this  effective  precaution  should  not  be  taken  against  the  possibility 
of  breach  of  trust  encouraged,  or  at  least  not  guarded  against,  by  the  law. 

While  the  expenditures  of  our  Government  are  constantly  increasing, 
and  while  the  appropriations  made  therefor  by  Congress  are  in  the 
aggregate  very  large,  yet  when  we  take  into  consideration  the  marvelous 
growth  of  the  country,  the  extent  to  which  the  people  demand  that  the 
Federal  Government  shall  perform  services  that  should  be  paid  by  the 
States,  none  but  the  unthinking  or  misguided  who  do  not  stop  to  con- 
sider the  care  with  which  the  estimates  for  appropriations  for  the  public 
service  are  scrutinized  by  the  several  committees  having  jurisdiction 
of  appropriation  bills  can  find  any  reason  to  criticise  appropriations 
made  during  this  session  of  Congress. 

During  the  seven  months  of  this  session  the  Committee  on  Appropria- 
tions has  spent  practically  all  of  the  time  in  endeavoring  to  ascertain 
what  appropriations  can  be  eliminated  without  detriment  to  the  public 
service,  and  what  changes  in  administration  should  be  made  to  reduce 
expenditures.  The  hearings  on  the  several  appropriation  bills  reported 
from  the  general  Committee  on  Appropriations  during  this  session  cover 
nearly  4,000  printed  pages,  and  comprise  three  large  volumes.  These 
hearings  have  been  more  extensive  during  this  session  than  in  any  pre- 
vious Congress  —  all  for  the  purpose  of  avoiding  unnecessary  or  extrava- 
gant appropriations. 


FINANCIAL  LEGISLATION  351 


REPRESENTATIVE   LITTAUER  ON  APPROPRIATIONS1 

MR.  LITTAUER.  Mr.  Chairman,  the  legislative,  executive,  and  judicial 
appropriation  bill  as  presented  to  the  House  makes  provision  for  the 
annual  salaries  of  14,406  public  officials.  It  carries  appropriation  in  all 
of  $29,134,181.  The  annual  Book  of  Estimates  as  submitted  to  Congress 
called  for  appropriation  in  connection  with  this  bill  of  $447,000  increase 
over  the  bill  of  last  year.  The  bill  we  present  to  you  is  $1,135, 572  IGSS 
than  the  estimates,  or,  in  other  words,  $688,000  less  than  is  carried  in 
the  bill  for  the  current  year. 

The  Departments  have  asked  for  an  increase  of  force  of  one  hundred 
and  seventy-one.  The  bill  carries  two  hundred  and  thirty-two  less  than 
was  submitted  to  us,  or  a  decrease  of  force  of  sixty-one. 

Mr.  Chairman,  it  requires  much  more  than  a  cursory  examination  of 
a  bill  of  this  character,  regulating  the  salaries  of  the  entire  governmental 
service,  to  appreciate  the  hundreds  of  details  it  contains.  In  fact,  your 
committee  after  weeks  of  labor  on  the  bill  has  been  unable  to  consider 
each  one  of  its  many  details.  We  must  necessarily  be  guided  in  large 
measure  by  the  detail  of  former  appropriation  bills  and  consideration  of 
the  various  submissions  of  the  Book  of  Estimates  —  submissions  for 
increase  of  force,  increase  of  compensation,  and  for  new  projects.  We 
have,  however,  in  late  years  had  frequent  occasion  to  refer  to  many  facts 
to  demonstrate  that  the  annual  estimates  were  often  prepared  with  less 
care  and  scrutiny  than  they  deserved.  The  estimates  come  to  us  through 
the  heads  of  Departments,  the  Secretaries  of  the  President's  Cabinet, 
whose  many  duties,  established  by  law  and  by  custom,  take  up  so  much 
of  their  time  that  it  seems  impossible  for  them  to  enter  into  details  which 
they  submit  to  us.  The  result  is  that  in  general  practice  they  are  com- 
pelled to  rely  upon  statements,  estimates,  and  submissions  of  their  bureau 
chiefs,  as  we  have  to  depend  upon  theirs. 

The  result  of  this  custom  is  that  in  matters  of  submission  of  estimates 
the  bureau  chief  is  in  reality  supreme  and  soon  grows  into  the  habit  of 
thinking  he  ought  to  be  supreme.  So  that,  if,  in  the  course  of  events, 
the  Secretary  sees  fit  to  eliminate  any  of  his  estimates,  to  cut  them  down 
or  to  cut  them  out  in  part,  or  if  the  judgment  of  Congress,  as  declared 
in  its  appropriations,  takes  a  like  course,  the  gentlemen  at  the  head  of 
these  bureaus  seem  to  have  taken  it  upon  themselves  to  study  out  means 
and  methods  of  drawing  from  the  genefal  appropriations  —  the  inde- 
terminate appropriations  —  for  their  departments  and  bureaus  such 
sums  as  in  their  own  good  judgment  are  necessary  to  carry  out  the  pur- 
poses of  their  bureaus  as  they  believe  they  ought  to  be  carried  out.  Their 
impulse,  as  is  generally  stated,  is  that  they  seek  to  carry  on  the  necessary 
work  of  their  bureaus  as  they  believe  it  ought  to  be  carried  on.  The 

1  Congr.  Record,  March  13,  1906. 


352  AMERICAN   FEDERAL   GOVERNMENT 

system  has  resulted  in  placing  the  opinion  of  the  bureau  chief  over  that 
of  his  superior  officer;  it  negatives  the  action  of  Congress,  and  leads, 
as  we  have  frequently  demonstrated  in  this  bill,  to  a  diversion  of  public 
funds  and  extravagant  expenditure,  thwarting  the  purpose  of  Congress, 
paying  higher  salaries,  bringing  about  abuses  in  promotion,  and  apply- 
ing funds  intended  for  one  purpose  to  the  accomplishment  of  others. 

Your  Committee  on  Appropriations  has  sought  in  this  bill  to  limit 
every  diversion  of  public  funds  from  the  exact  purpose  for  which  they 
were  appropriated,  and  if  gentlemen  will  examine  the  report  accompany- 
ing the  bill,  they  will  find  that  we  have  placed  many  limitations  on  the 
expenditure  of  appropriations.  For  instance,  in  the  State  Department 
we  have  placed  a  limitation  on  the  use  of  the  emergency  fund  given  to 
the  President  for  the  emergencies  in  the  diplomatic  service,  used  for 
clerk  hire  in  the  Department  in  Washington.  In  the  War  Department 
we  have  limited  the  use  of  general  appropriations  for  the  detail  of  civil 
officers  and  clerks  to  bureaus  in  the  Department  from  other  branches 
of  the  service  in  the  District  of  Columbia. 

In  the  Navy  Department  we  found  contingent  expenses  in  the  bureaus 
were  drawn  not  only  from  the  contingent  fund  of  the  Department,  but 
from  the  general  appropriations  for  the  bureaus  and  for  the  increase  of 
the  Navy.  We  intend  to  put  a  stop  to  that  practice.  In  the  Treasury 
Department  we  found  an  appropriation  for  the  restoration  of  old  rolls 
and  vouchers.  All  the  old  ones  seem  to  have  been  restored.  The  fund 
was  used  to  supplement  the  clerks  in  the  various  bureaus  of  the  Depart- 
ment, and  we  have  omitted  that  appropriation.  And  then  we  took  it 
upon  ourselves  to  wipe  out  every  lump-sum  appropriation  that  we  could 
get  at.  We  found  that  certain  forces  had  been  provided  for  year  after 
year,  as,  for  instance,  in  the  Bureau  of  Engraving  and  Printing,  forces 
that  were  devoted  to  the  executive  work  of  that  office;  we  took  them 
over  and  specifically  provided  for  them.  In  the  Office  of  the  Supervising 
Architect  there  was  a  like  condition.  Gentlemen  all  know  that  about 
5  per  cent  is  drawn  from  the  appropriation  made  for  new  buildings  and 
applied  to  work  of  design  and  engineering  for  draftsmen  and  clerks  here 
in  the  Supervising  Architect's  Office.  We  took  over  as  much  of  that 
force  as  seemed  to  us  to  be  permanent.  We  have  covered  into  this  bill 
specifically  every  force  that  we  could  get  at,  carried  by  lump-sum  ap- 
propriation. There  were  a  few  in  regard  to  which  we  felt  that  it  was 
not  yet  the  proper  time  to  appropriate  specifically,  and  notably  the  ad- 
ministrative force  of  the  Government  Printing  Office,  concerning  the 
work  of  which  we  held  elaborate  hearings,  but  found  that  the  Public 
Printer,  recently  appointed  to  that  office,  had  not  yet  such  comprehen- 
sive idea  of  the  work  and  had  not  yet  begun  the  elimination  of -the  force 
that  was  necessary  to  properly  conduct  the  office,  and  hence  was  not 
able  to  advise  us  in  reference  to  specific  salaries  for  the  necessary  force. 

It  is  becoming  gradually  more  and  more  difficult  for  us  to  ferret  out 


FINANCIAL  LEGISLATION  353 

what  is  going  on  in  the  Departments.  Our  hearings  lasted  for  weeks, 
extending  over  700  pages  in  the  pamphlet  before  you.  The  fact  is  con- 
stantly before  us  that  we  should  have  at  our  service  some  sort  of  aid 
which  would  examine  into  the  expenditure  after  the  appropriation  has 
been  made,  so  as  to  get  at  the  facts  in  the  bureaus  of  what  is  actually 
taking  place  there  in  order  to  control  with  fullest  intelligence  appro- 
priations for  the  future.  The  machinery  provided  by  Congress  for  the 
examination  of  accounts  and  expenditures,  of  economy,  justness,  cor- 
rectness of  expenditures,  of  conformity  with  appropriation  law,  of 
retrenchment,  abolishment  of  useless  offices,  of  the  reduction  and  in- 
creased pay  of  officers  is  evidently  not  in  working  order;  at  any  rate, 
some  gear  is  out  of  place  which  needs  looking  after  by  the  engineers  in 
charge.  Without  some  aid  from  those  who  have  made  examinations 
of  the  actual  conduct  of  expenditures  in  the  bureaus  your  Committee  on 
Appropriations  probes  away,  in  the  ascertaining  of  these  facts,  largely 
in  the  dark.  We  follow  up  leads  which  come  to  us  through  rumors  or 
through  our  own  experience  and  casual  observation.  Our  efforts  in 
forming  such  an  appropriation  bill  as  this  toward  getting  at  necessary 
facts  can  amount  to  nothing  but  a  scratch  on  the  surface,  astounding 
though  such  revelations  scratched  up  actually  are.  The  diversion  of 
appropriations,  setting  aside  the  will  of  Congress,  despite  such  limitations 
as  we  place  upon  expenditure  to  prevent  the  diversion  of  funds  intended 
for  one  purpose  to  the  accomplishment  of  another,  will  go  on  unless  we 
can  provide  active  and  live  means  for  greater  scrutiny  and  vigilance  over 
the  operation  of  the  Departments.  Actual  violations  of  the  law  can  not 
be  charged,  but  the  intention  of  Congress  is  constantly  thwarted  by 
unauthorized  use  of  its  appropriations,  diverted  through  the  study  of 
various  appropriation  bills  to  find  the  technical  right  for  the  diversion 
of  funds. 

Now,  Mr.  Chairman,  the  consideration  of  a  bill  of  this  character 
naturally  leads  us  to  an  examination  of  the  conditions  we  find  in  the 
public  service,  and  we  have  this  year  been  greatly  impressed  by  many 
serious  consequences  —  matters  that  have  grown  worse  in  the  course 
of  time  in  connection  with  the  appointment,  the  methods  of  promotion, 
and  the  tenure  of  office. 

Mr.  Chairman,  I  want  first  to  call  the  attention  of  the  committee  to 
what  to-day  seems  to  be  an  absolute  necessity  —  a  reclassification  of  the 
Government  service  for  the  purpose  of  establishing  the  principle  that 
like  work  should  receive  like  pay.  To-day  we  find  forces  of  men  receiv- 
ing salaries  at  $900,  at  $1,000,  at  $1,200,  and  even  at  $1,800  a  year 
performing  exactly  the  same  work.  This  is  most  demoralizing  to  the 
force  and  works  detriment.  It  is  as  unjust  as  it  is  unfair.  Unjust  to  the 
man  who  performs  the  same  work  as  his  neighbor  and  at  a  lower  salary, 
and  unfair  in  the  distribution  of  the  public  funds.  We  find  by  our 
system  of  promotion  that  a  clerk  working  at  one  time  at  a  thousand  dollars 

23 


354  AMERICAN   FEDERAL   GOVERNMENT 

will  perform  just  the  same  work  when  thereafter,  in  the  course  of  years, 
he  has  been  promoted  to  $1,200  or  $1,400,  or  to  a  compensation  of  $1,800 
per  year.  Such  a  system  of  promotion  is  manifestly  wrong.  I  do  not  see 
how  we  can  reform  these  matters  in  our  appropriation  bill.  I  feel  that 
there  ought  to  be  appointed  a  commission  of  the  two  Houses  of  Congress 
to  consider  this  subject  of  inequality  of  pay  and  the  subject  of  the  meth- 
ods of  promotion,  and  the  causes  why  in  one  Department  a  larger  force 
is  required  to  accomplish  the  same  result  as  a  much  smaller  force  in 
another  Department. 

It  seems  to  me  that  we  ought  to  have  a  commission  to  consider  these 
problems  with  power  to  report  their  recommendations  with  every  privi- 
lege. If  we  do  not  take  some  action,  the  inequality  of  compensation  will 
continue  to  grow  from  year  to  year  until  its  growth  will  be  a  serious 
detriment  to  the  proper  conduct  of  our  Departments. 

Mr.  Chairman,  the  Government  offers  a  very  attractive  field  of  occu- 
pation in  its  service.  Our  salaries,  especially  those  in  the  ordinary 
clerical  force,  are  not  only  generously  liberal,  but  even  extravagantly 
high  in  comparison  with  what  is  paid  throughout  the  country.  I  make 
bold  to  say  that  if  the  conduct  of  our  service  could  be  the  same  as  that 
which  obtains  in  the  great  manufacturing  and  trading  concerns  of  the 
country,  in  the  railroads,  such  as  the  New  York  Central  or  the  Pennsyl- 
vania Railroad  companies,  that  the  service  of  the  Government  could 
be  conducted  by  three-fourths  of  the  force  now  employed  and  at  practi- 
cally little  more  than  half  its  cost.  Our  salaries  are  higher,  our  hours  of 
work  are  less,  our  leaves  of  absence  with  pay  are  longer,  our  holidays 
are  more  frequent,  and  the  relative  productive  gait  at  which  our  clerks 
work  is  decidedly  lower,  with  the  result  that  the  wide-open  doors  of  our 
public  service,  barred  only  by  an  examination  for  competency,  are  always 
crammed  jam  full  with  numerous  applicants.  Once  inside  the  doors, 
safely  within  the  public  service,  those  not  blessed  with  more  than  the 
usual  ambition  or  independence  remain  until  death  makes  a  vacancy  in 
their  positions.  Under  the  operation  of  civil-service  regulations,  with 
its  wide-open  door  at  the  entrance,  there  is  no  other  outlet,  except 
by  resignation,  than  a  door  wide  enough  to  let  a  coffin  through. 
[Applause.] 

Now,  Mr.  Chairman,  our  conditions  are  daily  growing  worse,  until 
the  time  has  come  when  we  must  devote  our  best  endeavors  to  correct 
this  state  of  affairs.  With  the  right  of  continuous  tenure  in  office  must 
go  the  demand  that  the  clerk  remain  competent.  When  through  any 
infirmity,  mental  or  physical,  he  is  no  longer  competent  to  deliver  an 
equivalent  for  his  salary,  he  must  make  room  for  those  able  to  do  so. 
Our  Government  is  no  charitable  institution. 

Mr.  GROSVENOR.  Mr.  Chairman,  I  should  like  to  ask  the  gentleman 
a  question. 

Mr.  LITTAUER.    Certainly. 


FINANCIAL  LEGISLATION 


355 


Mr.  GROSVENOR.  I  should  like  to  inquire  of  the  gentleman  in  charge 
of  this  bill,  and  whose  statement  is  very  interesting,  if  there  is  no  power 
anywhere  to  get  rid  of  an  incompetent  clerk? 

Mr.  LITTAUER.  There  is.  The  law  makes  amp.e  provision  for  getting 
rid  of  an  incompetent  clerk  to-day,  but  I  was  just  about  to  comment  on 
the  fact  that  the  law  is  never  carried  out. 

Mr.  GROSVENOR.    Can  you  make  a  law  that  will  be  lived  up  to  ?          *• 

Mr.  LITTAUER.  I  believe  we  can  make  provision  that  would  eliminate 
incompetent  and  incapacitated  employees. 

Mr.  GROSVENOR.  Would  it  not  be  a  good  idea  to  eliminate  some  of 
the  people  who  refuse  to  obey  the  law? 

Mr.  LITTAUER.  It  would  be,  and  they  are  the  heads  of  bureaus  and 
heads  of  Departments,  who  seem  to  be  overcome  with  sympathy. 

Mr.  CHARLES  B.  LANDIS.    And  are  some  of  them  in  the  same  class? 

Mr.  LITTAUER.  And  many  of  them  are  in  the  same  class.  But,  Mr. 
Chairman,  as  I  was  saying,  this  Government  is  not  a  charitable  institu- 
tion. Our  Departments  must  not  be  turned  into  homes  for  the  aged  and 
infirm.  We  must  demand  that  our  clerks  continue  competent,  and  we 
must  find  means  of  getting  rid  of  those  who  prove  that  they  are  not  com- 
petent. For  years  this  House  has  included  a  provision  in  this  very  bill 
declaring  that  no  appropriation  carried  in  the  bill  should  be  applicable 
to  the  payment  of  the  salary  of  an  incapacitated  clerk;  but  when  our 
bill  reaches  another  body  we  find  insistence  there  that  this  incapacity 
must  be  "permanent"  incapacity,  or  it  must  be  incapacity  "other  than 
temporary."  Then  the  administration  of  the  law  falls  into  the  hands 
of  the  heads  of  the  Departments  and  the  heads  of  the  bureaus,  and  these 
gentlemen  declare  that  they  are  not  gifted  with  divine  foresight,  that  they 
can  not  tell  whether  the  incapacity  of  the  day,  in  the  case  of  any  clerk, 
will  not  be  cured  at  a  future  day.  They  say  they  can  not  tell  whether 
the  clerk  stricken  with  paralysis  may  not  at  some  future  day  be  drawn 
out  of  his  trouble.  Consequently  the  law  is  nothing  but  a  dead  letter. 

It  was  never  the  intention  of  Congress  that  tenure  in  the  civil  service 
should  be  for  life,  but  only  during  efficiency,  and  yet  the  action  of  these 
heads  of  Departments  and  heads  of  bureaus,  permitting  their  sympathies 
to  carry  them  away,  has  evidently  thwarted  the  intention  of  Congress. 
While  appointment  to  office  is  no  longer  the  spoil  of  the  victorious  parti- 
san, retention  in  office  has  become  the  spoil  of  the  incapacitated  clerk. 

REPRESENTATIVE   GILLETT   ON  THE   INFLUENCES 
IN  LEGISLATION  TOWARDS   EXTRAVAGANCE1 

"What  the  Appropriations  Committee  has  to  consider  in  making  up 
any  bill  is  not  how  small  it  ought  to  be,  but  how  small  we  can  make  it, 
1  New  York  Evening  Post,  May  29,  1905. 


356  AMERICAN   FEDERAL   GOVERNMENT 

and  still  have  it  go  through  the  House,"  said  Representative  Frederick 
H.  Gillett,  a  member  of  that  committee,  in  discussing  to-day  the  influences 
which  were  operative  in  national  legislation  toward  extravagance.  The 
recently  retired  chairman  of  that  committee,  Mr.  Hemenway,  has  lately 
expressed  his  opinion  that  we  needed  no  tariff  revision  and  no  increase 
of  internal  revenue;  that  what  we  really  needed  was  the  elimination  of 
i  needless  expenditures.  Mr.  Gillett  thus  shows  how  difficult  that  task 
would  be.  He  has  had  some  experience  in  the  troubles  of  an  economist, 
for  he  has  been  pilloried  and  lampooned  in  the  Washington  newspapers 
for  extending  the  working  day  in  the  departments  from  four  to  half- 
past,  in  accordance  with  the  law.  Speaking  of  the  needs  of  economy, 
Mr.  Gillett  said: 

"The  great  difficulty  is  to  find  the  spot  where  Congress  will  agree  to 
economize.  Most  of  the  members  say  they  are  for  economy,  and  I 
believe  they  are  sincere,  but  when  it  comes  to  applying  their  principles 
to  any  particular  case,  there  is  apt  to  be  some  special  reason  against  it, 
and  so,  while  favoring  economy  in  the  abstract,  they  oppose  it  in  practice. 
The  most  common  instance  is,  of  course,  where  money  is  to  be  spent  in 
a  man's  district,  for  a  public  building,  or  for  river  or  harbor  improve- 
ments. Some  districts  seem  to  gauge  their  representative's  ability  and 
usefulness  by  his  success  in  extracting  money  from  the  Treasury  to  be 
spent  at  home.  When  constituents  set  up  such  a  standard,  it  is  hard  for 
a  member  not  to  be  influenced  by  it. 

"Gradually  the  men  who  want  different  things  compare  their  needs, 
combine  and  agree  to  help  one  another,  tacitly  or  avowedly,  and  thus 
a  majority  may  be  rounded  up,  which  is  quite  insensible  to  argument, 
because  each  one  is  earnest  for  his  own  appropriation,  and  knows  that 
the  only  way  to  get  it  is  to  support  the  other  claims,  regardless  of  their 
merits.  This  is,  of  course,  the  time-honored  system  of  log-rolling,  but 
I  fear  that  as  the  country  has  grown  larger,  its  interests  more  diverse, 
and  its  sections  more  separate  and  mutually  unknown,  the  tendency 
develops  for  a  member  to  feel  that  he  can  not  grasp  and  master  the  needs 
of  the  whole,  and  that  therefore  he  will  be  content  to  look  out  for  his 
district  and  himself.  There  was  a  striking  instance  not  long  ago  when 
an  influential  State  delegation  were  intent  on  securing  a  large  appropria- 
tion, and,  apparently  fearing  argument  would  not  win  it,  set  about  gain- 
ing votes  by  promising  to  support  other  schemes,  and  their  independence 
and  judgment  were  mortgaged  throughout  that  Congress  by  the  trades 
they  made. 

"Every  member  will  denounce  such  methods  in  theory,  and  admit 
that  they  are  destructive  of  good  legislation,  but  many  honorable  men 
will  stoop  to  them  under  the  belief  that  it  is  the  only  way  to  achieve 
some  most  deserving  end,  and  to  maintain  their  popularity  at  home. 

"The  Appropriations  Committee  in  making  up  the  large  bills  is  sub- 
jected to  great  pressure  from  members  of  the  House  —  never  for  economy, 


FINANCIAL  LEGISLATION  357 

but  always  for  larger  expenditure  in  each  man's  district.  Naturally  the 
committee  has  a  pride  in  carrying  its  bills  through  the  House  without 
substantial  amendments,  and  consequently,  in  formulating  the  bills, 
must  take  into  account  not  only  the  merits,  but  the  popularity  of  each 
proposition,  and  it  will  be  discouraging  to  friends  of  economy  to  know 
that  the  committee  never  has  any  fears  that  the  House  will  reduce  any 
expenditure  —  the  danger  always  is  of  increases.  There  is  no  selfish 
interest  enlisted  on  the  side  of  economy,  while  every  member  has  pressure 
from  home  for  increased  expenditure,  and  naturally  the  Government 
suffers.  Experience  on  the  Appropriations  Committee,  when  one  sees 
how  defenseless  the  Treasury  is  against  the  constant  assaults  upon  it, 
is  bound  to  make  a  man  an  economist  unless  he  reaches  that  hopeless 
stage  where  he  concludes  that  resistance  is  vain,  and  that  he  might  as 
well  join  the  scramble,  take  what  he  can,  and  wait  for  the  deluge.  Un- 
less public  opinion  is  aroused  to  the  dangers  of  this  constant  attack  upon 
the  Treasury,  by  endorsing  the  members  who  oppose  it,  constantly 
increasing  deficits  must  be  expected.'1 


CAPITALIZING  EXTRAVAGANCE,    1901  l 

MOST  of  the  Congressional  alarm  and  lamenting  over  swollen  public 
expenditures  is  beside  the  mark.  Senators  with  hands  all  adrip  with 
extravagance  of  their  own  reproach  others  for  wanting  to  do  what  they 
themselves  have  already  done.  That  is  neither  edifying  nor  convincing. 
Nor  does  it  advance  the  cause  of  economy,  which,  like  charity,  begins 
at  home.  As  little  are  we  profited  by  charges  and  proof  that  the  minority 
party  is  just  as  extravagant,  just  as  eager  to  fasten  its  own  little  local 
jobs  upon  the  Treasury,  as  the  party  in  control  of  the  Government.  The 
pot  may  be  perfectly  justified  in  calling  the  kettle  black ;  but  it  is  the  pot 
which  is  responsible,  and  which  will  be  smashed  if  an  overtaxed  people 
ever  takes  to  looking  about  for  an  object  of  vengeance.  Republicans 
may  taunt  and  expose  Democrats  to  their  hearts'  content;  but  if  there 
is  inexcusable  extravagance,  and  if  anybody  is  to  be  held  to  stern  account 
for  it,  the  Republican  party  will  be  the  sole  sufferer,  as  it  is  really  the 
sole  offender.  Under  party  government  no  other  result  is  possible  or 
desirable. 

One  reason  why  the  party  responsible  for  the  Government  is  less  able, 
if  not  less  willing,  than  it  used  to  be  to  keep  down  appropriations,  has 
often  been  pointed  out  in  these  columns.  Our  system  does  not  lend 
itself  to  rigid  financial  control.  Unlike  all  other  governments  in  the 
world,  the  American  has  no  man,  or  committee  of  men,  to  make  up  a 
yearly  budget,  to  determine  income  and  fix  outgoes.  Our  method  is  a 

1  Editorial  in  the  New  York  Evening  Post,  1901. 


358  AMERICAN  FEDERAL   GOVERNMENT 

happy-go-lucky  plan  of  allowing  one  set  of  men  to  make  laws  for  revenue, 
another  to  frame  bills  for  expenditures.  That  we  have  not  gone  to  smash 
under  such  chaotic  management  is  due  partly  to  our  traditional  good 
fortune,  partly  to  our  expanding  wealth  —  which  has  operated  in  the 
same  way  that  robust  health  enables  a  man  to  order  his  life  recklessly, 
for  a  time  —  and  partly  to  the  fact  that  we  have  had  a  rough  system  of 
financial  control.  But  this  has  been  badly  broken  down. 

At  the  close  of  the  civil  war  the  Committee  on  Ways  and  Means  had 
charge  of  all  the  appropriation  bills  as  well  as  the  revenue  bills.  That 
was  something  like  a  budget-framing  body.  Then  came  the  creation 
of  the  Committee  on  Appropriations,  to  take  sole  charge  of  outgo  as  the 
Ways  and  Means  Committee  did  of  income.  What  this  meant  in  the 
days  when  Samuel  J.  Randall  was  Chairman  of  the  Appropriations  Com- 
mittee, everybody  whose  memory  goes  back  to  1874-76  will  recall.  But, 
under  malign  influences,  the  House  has  been  induced,  from  time  to 
time,  to  scatter  the  annual  appropriation  bills  among  thirteen  or  fourteen 
different  committees,  each  intent  on  -log-rolling  its  own  measure  up  to 
the  top  notch,  and  with  no  firm  and  centralized  control  existing  longer 
anywhere.  Responsibility  has  thus  been  dissipated,  and  so  have  the 
funds.  Chairman  Cannon  may  still  protest  that  it  is  his  main  business 
not  to  make  appropriations,  but  to  prevent  their  being  made,  and  Senator 
Allison  may  warn  and  protest;  but  effective  control  has  largely  escaped 
from  them,  and  their  complaints  are  unheeded.  Some  day  Congress  will 
see  this  hugger-mugger  system  driving  us  straight  to  national  bankruptcy, 
and  will  be  compelled  to  set  up  a  responsible  government  in  financial 
matters  —  something  that  we  are  now  alone  among  the  nations  in  not 
having. 

One  serious  aspect  of  national  extravagance  is  commonly  overlooked. 
People  do  not  see  how  one  spendthrift  Congress  makes  the  next  one 
almost  inevitably  as  prodigal.  The  reason  is  that  the  extravagant  legis- 
lation fixes  a  permanent  charge  on  the  Treasury.  No  step  backward, 
is  the  rule.  There  was  loud  outcry  against  a  " billion-dollar  Congress"; 
but  its  successor  was  able  to  save  little  or  nothing.  Now  we  are  rapidly 
approaching  a  billion-dollar  session,  and  no  dam  for  the  rising  flood  is 
in  sight.  Each  succeeding  Congress  inherits  a  legacy  of  extravagance 
from  its  predecessor.  Its  own  hands  are  partly  tied  by  anterior  legisla- 
tion committing  the  Government  to  continuing  appropriations  for  this 
and  that  scheme,  this  and  that  enlargement  of  the  public  service  and 
creation  of  new  offices.  It  is  this  which  makes  retrenchment  so  difficult, 
if  not  practically  impossible.  To  abolish  places,  to  consolidate  offices,  to 
cut  down  regular  expenses  —  why,  this  is  almost  treason,  from  the  party 
point  of  view.  It  is  flat  villainy  in  the  minds  of  men  whose  sinecures 
are  threatened.  So  that  extravagance  always  tends  to  perpetuate  itself. 
The  lavish  appropriations  of  one  Congress  become  a  kind  of  annual 
interest  charge  which  must  be  paid  upon  a  capitalized  extravagance. 


FINANCIAL  LEGISLATION  359 

A  common  fallacy  in  all  this  business  is  the  urging  of  an  analogy  from 
private  life.  Congress  will  economize,  it  is  said,  when  it  has  to,  just  as 
a  man  will  when  his  income  is  cut  in  two.  We  are  now  in  the  presence 
of  an  overflowing  Treasury;  there  will  be  a  surplus  after  all  the  bills 
are  paid;  the  country  is  prosperous;  no  one  complains  of  taxes  —  so 
what  are  you  afraid  of  ?  When  the  lean  years  come,  the  appropriations 
will  be  lean.  A  man  gives  up  his  carriage  and  his  box  at  the  opera  in 
hard  times,  and  Congress  will  do  the  same.  Ah,  but  Congress's  coach- 
man will  simply  refuse  to  be  discharged.  The  federated  coachmen  all 
over  the  country  —  i.  e.,  the  officeholders  —  will  prove  stronger  than 
Congress.  They  will  tell  it  that  it  has  brought  them  into  the  world,  and 
now  it  must  fill  their  mouths.  What,  will  Congress  be  worse  than  an 
infidel,  and  not  provide  for  its  own  ?  It  is  not  merely  in  war  expenses 
that  Congress  has  been  lavish.  Every  appropriation  bill  has  been  in- 
creased, new  offices  created,  new  entering  wedges  driven,  a  permanent 
charge  on  the  Treasury  laid  in  many  a  swollen  item.  The  point  is  that 
flush  times  are  setting  a  pace  which  will  have  to  be  kept  up  in  the  lean 
times.  If  economy  is  disregarded  now,  it  will  be  declared  impossible 
then.  It  is  easy  enough  to  let  the  jinn  of  extravagance  out  of  the  bottle, 
but  to  get  him  back  in  again  —  that  is  the  labor.  Thus  we  see  that  the 
evil  which  an  extravagant  Congress  does  lives  after  it ;  and  the  good,  if 
good  there  be,  is  interred  with  its  bones. 


PRESIDENT   CLEVELAND'S   VETO   MESSAGE  ON  THE 
RIVER  AND   HARBOR  BILL,    1896 

To  THE  HOUSE  OF  REPRESENTATIVES: 

I  return  herewith  without  approval  House  bill,  No.  7977,  entitled  "An 
act  making  appropriations  for  the  construction,  repair,  and  preserva- 
tion of  certain  public  works  on  rivers  and  harbors,  and  for  other 
purposes." 

There  are  417  items  of  appropriation  contained  in  this  bill,  and  every 
part  of  the  country  is  represented  in  the  distribution  of  its  favors. 

It  directly  appropriates  or  provides  for  the  immediate  expenditure  of 
nearly  $14,900,000  for  river  and  harbor  work.  This  sum  is  in  addition 
to  appropriations  contained  in  another  bill  for  similar  purposes  amount- 
ing to  a  little  more  than  $3,000,000,  which  have  already  been  favorably 
considered  at  the  present  session  of  Congress. 

The  result  is  that  the  contemplated  immediate  expenditures  for  the 
objects  mentioned  amount  to  about  $17,000,000. 

A  more  startling  feature  of  this  bill  is  its  authorization  of  contracts 
for  river  and  harbor  work  amounting  to  more  than  $62,000,000.  Though 
the  payments  on  these  contracts  are  in  most  cases  so  distributed  that 
they  are  to  be  met  by  future  appropriations,  more  than  $3,000,000  on 


360  AMERICAN   FEDERAL   GOVERNMENT 

their  account  are  included  in  the  direct  appropriations  above  mentioned. 
Of  the  remainder  nearly  $20,000,000  will  fall  due  during  the  fiscal  year 
ending  June  3oth,  1898,  and  amounts  somewhat  less  in  the  years  im- 
mediately succeeding.  A  few  contracts  of  a  like  character  authorized 
under  previous  statutes  are  still  outstanding,  and  to  meet  payments  on 
these  more  than  $4,000,000  must  be  appropriated  in  the  immediate 
future. 

If,  therefore,  this  bill  becomes  a  law,  the  obligations  which  will  be 
imposed  on  the  Government,  together  with  the  appropriations  made  for 
immediate  expenditure  on  account  of  rivers  and  harbors,  will  amount 
to  about  $80,000,000.  Nor  is  this  all.  The  bill  directs  numerous  sur- 
veys and  examinations  which  contemplate  new  work  and  further  contracts 
and  which  portend  largely  increased  expenditures  and  obligations. 

There  is  no  ground  to  hope  that  in  the  face  of  persistent  and  growing 
demands  the  aggregate  of  appropriations  for  the  smaller  schemes,  not 
covered  by  contracts,  will  be  reduced  or  even  remain  stationary.  For 
the  fiscal  year  ending  June  3oth,  1898,  such  appropriations,  together 
with  the  installments  on  contracts  which  will  fall  due  in  that  year,  can 
hardly  be  less  than  $30,000,000 ;  and  it  may  reasonably  be  apprehended 
that  the  prevalent  tendency  toward  increased  expenditures  of  this  sort 
and  the  concealment  which  postponed  payments  afford  for  extravagance 
will  increase  the  burdens  chargeable  to  this  account  in  succeeding  years. 

In  view  of  the  obligation  imposed  upon  me  by  the  Constitution,  it 
seems  to  me  quite  clear  that  I  only  discharge  a  duty  toward  our  people 
when  I  interpose  my  disapproval  of  the  legislation  proposed. 

Many  of  the  objects  for  which  it  appropriates  public  money  are  not 
related  to  the  public  welfare,  and  many  of  them  are  palpably  for  the 
benefit  of  limited  localities  or  in  aid  of  individual  interests. 

On  the  face  of  the  bill  it  appears  that  not  a  few  of  these  alleged  improve- 
ments have  been  so  improvidently  planned  and  prosecuted  that  after 
an  unwise  expenditure  of  millions  of  dollars  new  experiments  for  their 
accomplishment  have  been  entered  upon. 

While  those  intrusted  with  the  management  of  public  funds  in  the 
interest  of  all  the  people  can  hardly  justify  questionable  expenditures 
for  public  work  by  pleading  the  opinions  of  engineers  or  others  as  to  the 
practicability  of  such  work,  it  appears  that  some  of  the  projects  for  which 
appropriations  are  proposed  in  this  bill  have  been  entered  upon  without 
the  approval  or  against  the  objections  of  the -examining  engineers. 

I  learn  from  official  sources  that  there  are  appropriations  contained 
in  the  bill  to  pay  for  work  which  private  parties  have  actually  agreed  with 
the  Government  to  do  in  consideration  of  their  occupancy  of  public 
property. 

Whatever  items  of  doubtful  propriety  may  have  escaped  observation 
or  may  have  been  tolerated  in  previous  Executive  approvals  of  similar 
bills,  I  am  convinced  that  the  bill  now  under  consideration  opens  the 


FINANCIAL  LEGISLATION  361 

way  to  insidious  and  increasing  abuses  and  is  in  itself  so  extravagant  as 
to  be  especially  unsuited  to  these  times  of  .depressed  business  and  result- 
ing disappointment  in  Government  revenue.  This  consideration  is 
emphasized  by  the  prospect  that  the  public  Treasury  will  be  confronted 
with  other  appropriations  made  at  the  present  session  of  Congress 
amounting  to  more  than  $500,000,000. 

Individual  economy  and  careful  expenditure  are  sterling  virtues  which 
lead  to  thrift  and  comfort.  Economy  and  the  exaction  of  clear  justifica- 
tion for  the  appropriation  of  public  moneys  by  the  servants  of  the  people 
are  not  only  virtues  but  solemn  obligations. 

To  the  extent  that  the  appropriations  contained  in  this  bill  are  in- 
stigated by  private  interests  and  promote  local  or  individual  projects 
their  allowance  can  not  fail  to  stimulate  a  vicious  paternalism  and  en- 
courage a  sentiment  among  our  people,  already  too  prevalent,  that  their 
attachment  to  our  Government  may  rest  upon  the  hope  and  expectation 
of  direct  and  especial  favors  and  that  the  extent  to  which  they  are  realized 
may  furnish  an  estimate  of  the  value  of  governmental  care. 

I  believe  no  greater  danger  confronts  us  as  a  nation  than  the  unhappy 
decadence  among  our  people  of  genuine  and  trustworthy  love  and  affec- 
tion for  our  Government  as  the  embodiment  of  the  highest  and  best 
aspirations  of  humanity,  and  not  as  the  giver  of  gifts,  and  because  its 
mission  is  the  enforcement  of  exact  justice  and  equality,  and  not  the 
allowance  of  unfair  favoritism. 

I  hope  I  may  be  permitted  to  suggest,  at  a  time  when  the  issue  of  Gov- 
ernment bonds  to  maintain  the  credit  and  financial  standing  of  the 
country  is  a  subject  of  criticism,  that  the  contracts  provided  for  in 
this  bill  would  create  obligations  of  the  United  States  amounting  to 
$62,000,000  no  less  binding  than  its  bonds  for  that  sum. 

GROVER  CLEVELAND. 


IX 
THE   DEPARTMENTS 


[The  compass  of  this  collection  does  not  permit  the  giving  of  a  complete 
account  of  Departmental  Work  in  all  its  branches.  It  has  been  the  purpose  of 
the  author  to  include  selections  which  would  illustrate  in  a  particularly  inter- 
esting manner  the  functions  of  government.  Not  all  the  Departments  are  dealt 
with  nor  all  important  functions  in  the  Departments  described.  In  some  cases 
only  a  certain  bureau,  e.  g.,  the  Bureau  of  Corporations,  has  been  selected  for 
description.  For  a  complete  account  of  the  organization  and  work  of  the 
Departments,  the  student  is  referred  to  Fairlie's  "National  Administration 
of  the  United  States,"  Gauss,  "Government  of  the  United  States,"  and  also 
to  a  very  excellent  series  of  articles  on  the  work  of  Government  which  ap- 
peared in  Scribner's  Magazine,  volumes  33-35,  from  which  a  few  selections 
have  been  included  in  this  collection.  The  work  of  the  Departments  of  State, 
War,  and  Navy,  is  dealt  with  in  other  portions  of  this  collection,  e.  g.,  the 
Senate  debate  on  foreign  affairs.] 


THE  TREASURY1 
BY  FRANK  A.  VANDERLip2 

ASTONISHMENT  at  the  extent  and  diversity  of  interests  embraced  in  the 
Treasury  Department  must  have  been  one  of  the  first  sensations  of  most 
Secretaries  of  the  Treasury  after  taking  up  the  duties  of  the  office.  Even 
if  the  Secretary  had  been  active  in  public  life,  and  possessed  passing 
familiarity  with  the  great  Department,  he  would  scarcely  have  clearly 
comprehended  its  scope,  but  if  he  were  a  man  coming  from  an  active 
business  career,  without  opportunity  for  intimate  acquaintance  with  the 
treasury,  the  first  few  weeks  of  his  official  life,  it  is  likely,  were  marked 
by  daily  discoveries  of  new  and  entirely  unanticipated  functions. 

The  bureaus  which  are  bound  together  in  the  Treasury  Department 
are,  by  all  odds,  the  most  diverse,  and  at  the  first  casual  glance  it  would 
seem  the  most  unrelated  that  are  to  be  found  under  the  jurisdiction  of 

1  Extracts  from  an   article   in  Scribner's  Magazine,  April,  1903.     Reproduced  by 
permission.     Copyright  1903. 

2  Formerly  Assistant  Secretary  of  the  Treasury. 

362 


THE  DEPARTMENTS  363 

any  of  the  cabinet  officers.  The  public  thinks  of  the  Treasury  Depart- 
ment as  the  fiscal  division  of  the  Government's  executive  system.  It  is 
a  fact,  however,  that  for  a  good  many  years  probably  not  less  than  two- 
thirds  of  the  time  of  the  Finance  Minister  has  been  devoted  to  problems 
bearing  little  or  no  relation  to  the  strictly  fiscal  business  of  the  Govern- 
ment. The  organization  of  a  Department  of  Commerce,  drawing,  as  it 
will,  its  principal  bureaus  from  the  Treasury  Department,  will  bring 
needed  relief  to  a  cabinet  officer  who  has  quite  enough  to  occupy  his  at- 
tention in  the  administration  of  affairs  closely  related  to  the  Government's 
financial  business. 

The  responsibility  lor  raising  the  revenues  and  for  their  disbursement, 
now  that  the  totals  have  come  to  aggregate  more  than  one  thousand 
million  dollars,  would  seem  to  be  quite  enough  to  lay  upon  the  shoulders 
of  any  man,  particularly  if  he  must  take  up  those  duties  without  thorough 
familiarity  with  their  details,  as  does  each  new  Secretary.  But  in  addi- 
tion to  that  duty,  there  is  the  further  responsibility  for  the  solution  of 
the  problems  of  an  intricate  and  diverse  currency  system.  The  Secretary, 
too,  occupies  indirectly,  through  the  Comptroller  of  the  Currency,  a 
supervisory  relation  to  the  whole  national  banking  organization  of  the 
country.  He  is  the  indirect  custodian  of  $800,000,000  of  gold  and  silver 
coin,  stored  in  the  Treasury  vaults,  against  gold  and  silver  certificates 
in  circulation  representing  that  coin,  and,  through  his  subordinate,  the 
Treasurer  of  the  United  States,  he  shares  the  responsibility  for  the  care 
of  more  than  two  hundred  million  dollars,  representing  the  cash  balance 
which  the  Government  carries.  All  the  Mints  and  Assay  Officers  are, 
through  the  Director  of  the  Mint,  under  his  control.  He  directs  the 
operations  of  a  great  factory  employing  3,000  operatives  in  the  printing 
of  money  and  Government  securities,  and  he  must  there  meet  the  same 
problems  of  organized  labor  that  other  great  employers  have  to  meet. 
He  is  responsible  for  the  collection  of  commercial  statistics,  and  is  fortu- 
nate in  finding  a  bureau  for  that  purpose  which  has  a  record  for  the  best 
statistical  work  done  by  any  of  the  great  Governments.  He  is  at  the 
head  of  the  greatest  auditing  offices  in  the  world,  where  every  dollar  of 
income  and  every  item  of  expenditure  is  checked  over  with  minute  ex- 
actness, so  that  at  the  end  of  the  year  it  is  safe  for  him  to  say  the  whole 
billion  dollars,  the  total  on  both  sides  of  the  ledger,  has  been  collected 
and  disbursed  with  absolute  fidelity  and  legality  and  without  error. 

All  these  functions  are  naturally  related  to  the  management  of  the 
fiscal  affairs  of  the  Government,  but  there  are  many  other  bureaus  that 
do  not  apparently  bear  such  close  relation.  The  Secretary  will  discover 
that  there  are  almost  as  many  vessels  which  would  fly  his  official  flag 
should  he  come  on  board  as  there  are  ships  of  war  to  fire  salutes  to  the 
Secretary  of  the  Navy.  He  has  large  fleets  engaged  in  light-house  and 
coast-survey  work,  while  the  revenue  cutter  service,  in  which  are  many 
swift  and  modern  vessels,  does  police  duty  at  every  port.  He  is  the  final 


364  AMERICAN   FEDERAL   GOVERNMENT 

authority  in  all  official  judgments  relating  to  the  more  than  five  hundred 
thousand  immigrants  who  land  on  our  shores  annually,  and  he  is  the 
responsible  executive  for  carrying  out  the  immigration  laws  and  the 
Chinese  Exclusion  Act.  He  is  the  official  head  of  the  Bureau  of  Public 
Health  and  Marine  Hospital  Service,  which  guards  our  ports  from  conta- 
gious diseases,  maintains  quarantine  service  and  stations,  and  a  great 
system  of  hospitals  for  disabled  seamen.  The  Government's  Secret 
Service  Bureau  reports  directly  to  him,  and  he  watches  day  by  day  the 
unfolding  of  detective  stories  more  interesting  than  the  dime  novels  of 
his  boyhood  days,  and  there  accumulate  in  his  files  packages  of  reports, 
tied  with  red  tape,  more  thrilling  than  the  choicest  examples  of  yellow- 
covered  literature.  Not  only  is  the  Secret  Service  Bureau  devoted  to 
the  detection  of  counterfeiting,  but  its  services  are  called  into  play  in 
connection  with  any  secret  service  work  which  the  other  Departments 
may  wish  to  have  done.  The  Bureau  of  Standards,  to  which  all  ques- 
tions of  weights  and  measures  may  be  finally  referred,  is  under  his  direc- 
tion. No  steamship  may  sail  in  American  waters,  nor  leave  an  American 
port,  the  boiler  of  which  does  not  bear  the  stamp  of  official  inspection 
by  one  of  his  subordinates.  He  is  the  responsible  head  of  a  Life  Saving 
Service,  with  272  stations  and  a  cordon  of  men  patrolling  10,000  miles 
of  coast;  of  a  Light-house  system,  marking  the  course  of  mariners  with 
a  chain  of  lights  from  Maine  away  around  to  Alaska ;  of  a  Coast  Survey, 
which  has  for  its  business  not  only  the  charting  of  navigable  waters,  but 
the  scientific  investigation  of  the  earth's  curvature;  of  the  Architect's 
Office,  which  has  already  constructed  and  has  the  care  of  400  public 
buildings,  most  of  them  architecturally  bad,  and  which  is  at  the  moment 
engaged  in  planning  and  building  149  others,  many  of  which,  happily, 
are  showing  great  architectural  improvement. 

All  these  duties  are  in  addition  to  the  fundamental  one  of  collecting 
the  public  revenues,  a  work  requiring  the  maintenance  of  a  corps  of 
6,300  officials  at  168  ports  of  entry,  and  of  a  body  of  internal  revenue 
employees,  whose  eyes  are  literally  upon  every  foot  of  the  country's 
territory. 

By  no  means  the  least  of  the  manifold  duties  of  this  official  are  those 
which  are  connected  with  the  administration  of  the  Civil  Service,  for  his 
complete  corps  numbers  26,000  subordinates.  There  must  be  endless 
appointments,  promotions,  and  changes,  and  in  regard  to  them  all  the 
Secretary  of  the  Treasury- is  the  final  authority. 

The  mere  enumeration  of  such  a  list  of  responsibilities  carries  with  it 
the  conviction  that  the  Treasury  of  the  United  States  must  be  a  wonder- 
fully well  organized  machine,  else  it  would  be  impossible  for  any  man  to 
step  into  the  responsibilities  of  its  direction  without  the  change  being 
seriously  felt  by  the  entire  Treasury  organization  and  the  whole  country. 
The  Treasury  Department  is  a  wonderfully  well  organized  commercial 
machine.  Taking  it  all  in  all,  I  believe  there  is  no  organization  in  the 


THE  DEPARTMENTS  365 

commercial  life  of  this  country,  look  where  you  will,  that  is  its  superior ; 
in  many  respects  one  will  not  find  its  equal. 

We  are  apt  to  have  none  too  good  an  idea  of  our  Government  admin- 
istration, and  sometimes,  with  scant  knowledge  of  facts  and  conditions, 
condemn  the  executive  branches  of  the  Government.  Naturally  the 
Treasury  has  come  in  for  its  full  share  of  criticism,  for  it  touches  every 
citizen  in  the  tender  spot  of  his  pocket-book.  For  my  own  part,  how- 
ever, every  day  of  greater  familiarity  with  the  organization  was  a  day 
of  growing  admiration  for  it  and  of  increasing  pride  that  the  multitude 
of  affairs  entrusted  to  the  head  of  this  Department  are  administered  so 
intelligently,  so  promptly,  and  above  all  with  such  absolute  integrity  and 
entire  devotion  to  the  Government's  interests. 

Not  only  does  the  Treasury  Department  handle,  in  the  ordinary  in- 
come and  expenditures,  cash  transactions  aggregating  more  than  a  billion 
dollars*  annually,  but  it  is  responsible  for  the  custodianship  and  the 
renewal  of  currency,  the  printing  of  paper  money,  the  coinage  of  specie 
and  the  handling  of  public  securities,  and  the  figures  on  both  sides  of  the 
ledger  representing  the  total  of  all  these  transactions  reach  the  incom- 
prehensible aggregate  of  three  and  a  half  billions. 

Such  great  sums  are  handled  year  after  year  with  absolute  integrity, 
with  books  that  balance  to  a  penny,  with  cash  drawers  that  are  never 
short,  with  a  trust  not  betrayed.  Whatever  opinion  home-coming 
European  travellers  may  have  of  Treasury  methods,  after  more  or  less 
successful  attempts  to  avoid  custom  regulations,  they  must,  on  the  whole, 
give  respect  to  an  organization  which  accepts  a  responsibility  for 
annual  financial  transactions  aggregating  $3,500,000,000,  and  has  dis- 
charged that  responsibility  year  after  year,  under  one  political  adminis- 
tration after  another,  through  the  vicissitudes  of  cabinet  changes,  and 
presents  a  clean  record  having  on  it  no  important  blot  of  a  betrayal  of  a 
trust. 

A  new  Secretary  of  the  Treasury  approaching  the  responsibilities  and 
duties  of  the  great  position  with  an  appreciation  of  their  importance  must, 
in  years  past,  have  been  greatly  surprised  to  find  how  little  time  apparently 
he  could  devote  to  the  consideration  of  great  national  questions,  and 
how  much  he  must  give  to  the  small  routine  details  of  the  administra- 
tion of  the  civil  service.  The  26,000  employees  under  the  direction  of 
the  Secretary  of  the  Treasury  make  the  Treasury  Department  only 
second  to  the  Post-Office  in  point  of  numbers.  When  the  civil  service 
blanket  was  only  partly  drawn  over  these  places,  the  time  which  the 
head  of  the  Department  was  forced  to  give  to  the  discussion  of  appoint- 
ments, matters  in  most  part  of  minor  consequence  so  far  as  the  efficiency 
of  administration  was  concerned,  was  something  that  must  have  dis- 
couraged more  than  one  Secretary.  While  such  appointments  may 
have  been  of  minor  consequence  in  the  actual  administration  of  the 
Department,  they  were  of  great  importance  if  regard  was  to  be  had 


366  AMERICAN   FEDERAL   GOVERNMENT 

for  maintaining  cordial  relations  with  the  legislative  branch  of  the 
Government. 

Washington  wishes  to  see  evidence  of  democracy  about  the  Depart- 
ments. Neither  Senator  nor  Congressman  is  satisfied  to  cool  his  heels 
in  an  ante-room  for  any  length  of  time,  nor  are  political  leaders  who 
come  to  the  Capitol  on  a  mission  likely  to  be  pleased  if  the  Secretary's 
engagements  are  such  that  an  appointment  can  not  be  made  without 
notice  or  delay.  So  it  came  about  that  a  business  day  in  the  Secretary's 
office  was,  in  times  past,  almost  wholly  given  up,  during  the  periods  in 
which  Congress  was  in  session,  to  the  reception  of  visitors,  and  most  of 
these  visitors  came  to  discuss  matters  of  small  consequence  to  the  ad- 
ministration of  the  Department.  The  Secretary  of  this  great  Depart- 
ment must  give  heed  to  innumerable  trifles  such  as  would  never  reach 
the  head  of  even  a  comparatively  small  business  organization.  Requests 
come  from  people  of  importance,  and  they  must  be  taken  up  with  the 
care  which  the  position  of  such  persons  demands  rather  than  with  any 
thought  of  their  importance  in  relation  to  the  administration  of  depart- 
mental affairs. 

There  is  vast  improvement  in  the  Treasury  Department  in  this  respect 
compared  with  former  conditions.  The  Secretary  now  has  power  to 
make  but  few  appointments  outside  the  classified  service,  and  by  recent 
executive  order  he  may  not  consider  outside  recommendations  in  regard 
to  promotions  in  the  classified  service. 

Early  in  the  administration  of  Secretary  Gage  it  was  recognized  by 
the  Secretary  that,  if  he  was  to  give  consideration  to  the  unusual  number 
of  important  public  questions  which  were  pressing,  he  must  be  relieved 
of  much  of  the  detail  of  the  administration  of  the  civil  service;  so  he 
delegated  to  a  committee,  consisting  of  an  Assistant  Secretary,  the  Chief 
Clerk  and  the  Appointment  Clerk,  consideration  of  all  questions  of  civil- 
service  administration  effecting  the  employees  in  Washington.  This 
plan  continues  in  force.  Political  considerations  have  always  been 
absolutely  excluded  from  the  deliberations  of  this  Committee.  I  can 
speak  for  that  positively,  and  I  mean  to  say  that  such  a  statement  is 
literally  true.  The  Committee  has  considered  many  thousands  of  pro- 
motions and  changes  in  the  classified  service,  and  there  has  been  no 
more  discussion  of  politics  than  would  be  found  in  the  consideration  of 
promotions  in  a  great  banking  or  insurance  institution.  The  recom- 
mendations of  heads  of  bureaus,  the  length  and  character  of  service,  the 
regularity  of  attendance,  and  the  results  of  examinations  which  are 
made  to  cover  both  academic  and  practical  qualifications,  are  the  factors 
taken  into  consideration.  So  far  is  political  influence  eliminated,  indeed 
so  far  as  promotions  governed  strictly  by  merit  may  be  considered  the 
goal  in  an  ideal  civil-service  administration,  I  believe  the  conduct  of  the 
civil  service  in  the  Treasury  Department  is  to-day  practically  all  that 
could  be  asked. 


THE  DEPARTMENTS  367 


A  notable  difference  between  the  position  of  the  Secretary  of  the 
Treasury  and  that  of  the  head  of  a  great  business  organization  is  the 
time  which  the  Secretary  must  devote  to  the  discussion  of  public  ques- 
tions with  newspaper  representatives.  No  small  part  of  his  success  will 
depend  upon  his  adaptability  to  that  new  condition,  for  the  view  which 
most  of  the  people  of  the  country  will  form  of  his  administration  will 
naturally  be  much  colored  by  the  attitude  of  the  newspaper  correspond- 
ents through  whom  the  public  is  informed  regarding  official  matters. 

Newspaper  conditions  in  Washington  are  unlike  those  in  other  cities. 
There  are  innumerable  representatives  of  papers,  covering  the  whole 
range  of  the  country,  each  one  of  whom  serves  a  constituency  of  great 
importance.  As  a  body,  the  newspaper  correspondents  of  Washington 
are  incomparably  superior  to  the  average  newspaper  representatives  in 
other  cities.  Many  of  them  have  been  intelligent  observers  of  public 
affairs  for  a  generation,  and  have  been  the  confidants  and  advisers  of 
many  Cabinet  officers.  There  is  hardly  an  important  newspaper  man 
in  Washington  who  is  not  at  times  the  trusted  custodian  of  state  secrets, 
and  the  relation  of  these  men  to  public  affairs  is  entirely  different  from 
the  relation  of  the  average  reporter  in  other  cities  to  the  business  questions 
of  local  interest.  It  is  important  that  the  Secretary  of  the  Treasury 
recognize  this,  for  the  Treasury  Department  is  one  of  the  chief  sources 
of  news  at  the  Capital,  and  that  he  should  learn  to  meet  fairly  and  frankly 
the  newspaper  correspondents.  This  requires  much  time,  much  tact, 
and  a  discrimination  in  determining  those  who  can  be  fully  trusted  and 
kept  confidentially  informed  of  the  progress  of  affairs,  and  those  who 
must  be  talked  to  with  guarded  politeness. 

The  sacrifice  of  time  is  by  no  means  without  its  recompense.  Many  a 
Cabinet  officer  has  received  quite  as  good  counsel  from  conservative  and 
experienced  newspaper  correspondents  as  he  could  get  from  members 
of  Senate  or  House.  This  confidential  relation  with  newspaper  repre- 
sentatives is  unique,  and  unless  a  Secretary  of  the  Treasury  has  been 
trained  in  the  official  atmosphere  of  Washington,  it  is  likely  to  take  him 
some  time  to  recognize  it  and  adjust  himself  to  the  condition. 

In  a  most  important  particular  the  Treasury  Department  differs  from 
the  Finance  Ministries  of  other  countries.  Elsewhere  the  Finance 
Minister  occupies  an  authoritative  relation  to  legislation  affecting  income 
and  expenditure.  With  us,  the  Government  has  always  gone  on  with 
the  most  happy-go-lucky  lack  of  coordination  between  legislation  affect- 
ing income  and  legislation  affecting  expenditure.  The  Finance  Ministers 
of  other  countries  draw  up  a  budget,  which  forms  the  basis  of  Parlia- 
mentary legislation  in  financial  matters.  They  make  careful  estimate  of 
probable  Government  income  and  of  the  demands  for  the  executive 
administration,  and  Parliament,  as  an  almost  pro  forma  matter,  passes 
legislation  affecting  taxation  which  will  conform  to  the  proposals  in  the 


368  AMERICAN   FEDERAL   GOVERNMENT 

budget  and  limits  appropriations  within  lines  which  the  budget  may 
prescribe. 

With  us,  however,  the  Secretary  of  the  Treasury  is  little  more  than  an 
agent  who,  without  comment,  transmits  to  Congress  from  the  heads  of 
the  various  Departments  their  estimates  regarding  appropriations.  Con- 
gress, in  turn,  does  not  pay  close  heed  to  these  estimates,  frequently 
declining  to  make  appropriations  asked  for  and  not  infrequently  making 
appropriations  which  the  executive  head  of  the  Department  has  declared 
are  not  needed. 

With  us  there  is  little  flexibility  on  the  income  side  of  the  great  public 
ledger.  The  Secretary  of  the  Treasury  may  make  general  recommenda- 
tions regarding  the  necessities  for  greater  income  or  the  opportunity  for 
decreasing  taxation,  but  Congress  does  not  look  to  the  head  of  the 
Treasury  Department  with  much  solicitude  for  advice  regarding  tax 
legislation  or  suggestions  concerning  conservative  limits  of  appropria- 
tions. The  sources  of  our  Government  income  are  so  intimately  bound 
up  with  the  economic  theory  of  protection  that  we  are  likely  to  formu- 
late our  tax  laws  with  little  or  no  regard  to  the  amount  of  income  they 
will  produce,  and  to  make  appropriations  on  as  liberal  a  scale  as  the 
income  will  permit,  and  the  Finance  Minister  has  little  if  any  respon- 
sibility either  for  a  cash  balance  or  a  Treasury  deficit. 

Congress  is  not  disposed,  either,  to  give  very  much  heed  to  Depart- 
mental recommendations  regarding  expenditures. 

For  many  years,  for  example,  every  Secretary  of  the  Treasury,  in 
each  of  his  annual  messages  to  Congress,  recommended  that  no  appro- 
priation be  made  for  maintaining  certain  customs  districts  which  have 
become  commercially  obsolete  and  which  are  maintained  apparently  for 
no  other  purpose  than  to  give  the  Senator  or  Congressman  most  con- 
cerned an  opportunity  to  recommend  a  Presidential  appointment.  There 
are  12  customs  districts,  which  are  officered  at  an  expense  of  $15, 578. 14, 
where  the  total  income  from  customs  in  a  single  year  was  only  $275.26, 
and  the  cost  of  collection,  therefore,  reaches  $56.59,  for  each  dollar  col- 
lected. In  spite  of  repeated  recommendations  that  we  accept  the  changed 
conditions  which  have  made  these  old-time  customs  districts  quite  de- 
serted by  commerce,  Congress  insists  year  after  year  that  they  shall  be 
maintained,  that  officers  shall  be  appointed,  and  the  expenses  of  salaries 
and  office  administration  appropriated. 

A  saving  of  $200,000,  a  year  could  easily  be  made  without  any  sacrifice 
of  efficiency  in  the  customs  service,  but  Congress  hesitates  to  give  up  the 
privilege  of  naming  the  appointees  who  are  to  receive  in  salaries  this 
$200,000  of  useless  expenditure. 

Sometimes  this  apparent  spirit  of  perverseness  goes  farther  and  actively 
puts  obstacles  in  the  way  of  administration.  An  illustration  of  that  is 
found  in  recent  efforts  to  introduce  improved  methods  into  the  Bureau 
of  Engraving  and  Printing.  The  Government  printing  of  currency  is 


THE  DEPARTMENTS  369 

done  upon  the  same  form  of  old-fashioned  hand-press  that  was  used 
when  the  first  greenback  and  the  first  national  bank-note  were  turned 
out.  The  process  is  slow  and  expensive.  The  growth  of  the  country 
created  a  demand  upon  the  Bureau  which  it  was  almost  impossible  to 
keep  pace  with,  and  so  it  was  decided  to  put  in  power  presses  to  print 
the  backs  of  notes.  An  expenditure  of  $25,000  was  made,  with  results 
so  economical  that  a  saving  of  the  whole  cost  of  the  machines  was  effected 
in  a  few  months.  Tests  were  made  by  mixing  hand-printed  and  machine- 
printed  bills  and  submitting  them,  unmarked,  to  numbers  of  expert 
money  counters;  and  invariably  the  machine-printed  bills  would  be 
selected  as  the  best  examples  of  plate  printing. 

Labor  organizations  were  opposed  to  this  introduction  of  power  presses, 
however,  and  when  Congress  convened  brought  active  pressure  to  bear 
at  the  Capital,  with  the  result  that  riders  were  tacked  upon  the  appro- 
priation bills  prohibiting  the  expenditure  of  any  appropriation  for  the 
maintenance  of  power  presses ;  and  this  was  done  without  any  communi- 
cation with  the  Secretary  of  the  Treasury  on  the  part  of  either  Senate  or 
House  committee,  without  any  opportunity  for  presenting  the  Treasury's 
side  of  the  matter,  and  without  any  effort  to  secure  information  as  a 
basis  for  intelligent  legislation  except  such  as  was  presented  by  labor 
leaders  who  were  not  even  in  the  employ  of  the  Government. 

The  Ways  and  Means  Committee  and  the  Appropriation  Committees 
of  Congress  take  upon  themselves  the  responsibility  for  adjusting  the 
relation  between  income  and  expenditure.  A  great  tariff  bill  may  be 
framed  with  little  more  than  nominal  reference  to  the  Treasury  Depart- 
ment, and  legislation  formulated  which  may  enormously  affect  one  side 
or  the  other  of  the  Treasury  accounts  without  the  voice  of  the  Secretary 
being  heard  or  his  advice  asked  for.  Income  is  provided  and  expendi- 
tures are  appropriated,  without  Congress  being  advised  by  the  head  of 
the  Treasury  as  to  the  balance  between  the  two  sides  of  the  budget.  • 

A  phase  of  Treasury  affairs  emphasized  in  the  public  mind  is  the 
relation  of  the  Treasury  to  the  money  market.  At  certain  seasons  much 
is  to  be  heard  about  the  cries  of  Wall  Street  for  Treasury  help,  and  of 
the  relief  measures  which  the  Secretary  of  the  Treasury  may  bring  to 
bear  upon  an  unsatisfactory  banking  position.  An  ideal  fiscal  situation 
for  the  Government,  President  Harrison  once  said,  would  be  one  in 
which  the  income  each  day  just  equalled  the  expenditures.  In  such  a 
situation  there  would  be  no  problem  regarding  the  relation  of  the  Treasury 
to  the  money  market.  So  long  as  we  must  work  with  our  present  Sub- 
treasury  system,  however,  founded  as  it  was  in  ignorance  and  suspicion 
of  proper  banking  functions,  we  must  periodically  face  a  situation  in 
which  the  operations  of  the  Treasury  are  of  great  import  in  the  general 
financial  situation.  Laws  which  have  been  allowed  to  stand  unchanged 
since  Jackson's  hatred  of  the  banks  was  crystallized  into  statute,  prevent 
the  deposits  of  the  receipts  from  customs  anywhere  but  in  the  actual 

24 


370  AMERICAN   FEDERAL   GOVERNMENT 

vaults  of  the  Treasury  or  Sub-treasury.  The  country  is  in  such  a  position 
as  a  great  business  firm  would  be  whose  receipts  at  times  enormously 
exceeded  its  expenditures,  if  it  should  decide  to  lock  up  its  daily  income 
in  safety  deposit  vaults,  turning  all  credits  into  cash  and  locking  up  the 
actual  currency  just  at  a  time  when  there  might  be  a  most  active  demand 
in  the  ordinary  channels  of  trade  for  the  currency  which  would  thus  be 
abstracted. 

Of  course,  it  is  impossible  to  have  such  an  ideal  situation  as  President 
Harrison  suggested;  so  long  as  the  laws  relating  to  the  Sub-treasury 
system  stand  unchanged  it  is  useless  to  talk  about  taking  the  Govern- 
ment out  of  the  banking  business.  The  operations  of  the  Treasury 
inevitably  draw  it  into  the  situation,  and  it  becomes  one  of  the  great  prob- 
lems of  the  Secretary  to  keep,  as  nearly  as  may  be,  an  unchanging  total 
of  currency  in  the  Treasury  vaults  and  neither  withdraw  from  the  circu- 
lating medium  in  active  use  great  quantities  of  currency  when  income 
is  excessive  nor  suddenly  add  to  the  currency  in  circulation  when  the 
Government  has  great  payments  to  make  in  excess  of  its  daily  income. 
The  problems  of  that  character  were  unusually  frequent  and  difficult 
during  Secretary  Gage's  administration.  The  successful  settlement  of 
the  Pacific  Railroad  indebtedness  brought  a  payment  of  $58,000,000  to 
the  Treasury  in  December,  1897,  just  at  a  period  of  most  active  com- 
mercial demand  and  when  the  withdrawal  of  so  much  currency  would 
have  been  disastrous  to  reviving  business.  A  few  months  later  came  the 
sudden  expenditures  resulting  from  the  $50,000,000  appropriation  made 
by  Congress  at  the  beginning  of  the  Spanish  War,  and  soon  after  that  were 
poured  into  the  Treasury  the  proceeds  of  $200,000,000  of  Spanish  War 
bonds.  Twice  during  the  administration  issues  of  Government  bonds 
matured,  and  payment  of  many  millions  had  to  be  made  on  that  account. 
This  period  was  the  most  remarkable  since  the  Civil  War  for  violent 
fluctuations  in  the  Treasury's  balance,  and  it  is  one  of  the  best  evidences 
of  genius  in  the  administration  of  the  Department  at  that  time  that  the 
stock  of  money  actually  in  the  Treasury  vaults,  in  spite  of  this  period 
of  irregular  income  and  expenditure,  was  always  kept  at  comparatively 
the  same  level,  and  Treasury  operations  were  not  permitted  seriously 
to  affect  the  currency  of  the  country. 

It  is  such  problems  as  that  which  a  Secretary  of  the  Treasury  must 
always  find  recurring,  so  long  as  our  present  Sub-treasury  system  is  main- 
tained and  the  best  evidence  of  ability  on  the  part  of  a  Secretary  is  that 
these  sudden  influxes  of  funds  or  exceptional  expenditures  are  handled 
so  that  the  public  has  no  reason  to  recognize  the  intimate  relation  which 
must  exist  under  present  conditions  between  the  Treasury  and  the  bank- 
ing situation. 

With  a  currency  system  which  has  largely  been  the  growth  of  exigency 
rather  than  of  forethought,  there  is  always  a  desire  for  legislation  which 
will  bring  the  country's  currency  into  line  with  the  best  economic  ideas. 


THE  DEPARTMENTS  371 

Both  the  country  and  Congress  have  come  to  look  to  the  head  of  the 
Treasury  Department  as  a  natural  source  for  suggestions  regarding 
needed  currency  and  banking  legislation,  and  one  of  his  most  important 
duties  is  the  preparation  of  that  portion  of  his  annual  report  to  Congress, 
which  contains  recommendations  of  such  character.  That  has  been 
true  particularly  during  those  recent  years  in  which  fundamental  currency 
discussion  has  been  so  prominent  in  political  affairs,  and  during  which 
there  has  been  formulated  legislation  which  is  an  important  part  of  the 
ground-work  of  our  financial  system.  It  requires  a  wide  range  of  ability 
to  pass  easily  from  the  innumerable  practical  problems  of  executive  ad- 
ministration which  the  Treasury  presents,  to  the  writing  of  State  papers 
given  to  theoretical  and  economic  discussion  of  some  of  the  subtleties  of 
finance  and  currency.  The  annual  reports  of  the  heads  of  the  Treasury 
Department  for  many  years,  however,  show  that  we  have  been  fortunate 
in  having  men  of  such  breadth  of  ability  that  they  could  do  this  and  do 
it  well. 

Not  only  must  the  Secretary  successfully  grasp  theoretical  problems 
in  finance  and  be  capable  of  building  up  in  his  message  to  Congress  sound 
recommendations  for  financial  legislation,  but  he  has  to  face  a  much 
more  trying  ordeal  when  he  is  invited  to  appear  before  either  the  Senate 
Finance  Committee  or  the  House  Committee  on  Banking  and  Currency 
—  a  thing  which  is  usual  whenever  important  financial  legislation  is  under 
consideration.  It  is  a  comparatively  easy  matter,  with  ample  time  and 
good  counsel,  to  evolve  satisfactory  recommendation  for  legislation,  but 
it  is  far  more  difficult  to  advocate  those  recommendations  in  an  inquiry 
by  ingenious  and  hostile  members  of  a  Congressional  Committee.  Any- 
one who  has  studied  the  proceedings  of  Senate  or  House  Committees 
when  prominent  business  men  have  been  brought  before  them  to  express 
their  views  upon  financial  legislation  must  have  been  struck  by  the  la- 
mentable showing  which  some  of  the  most  prominent  financiers  may 
make  under  a  fire  of  questions  from  keen-witted  and  experienced  mem- 
bers of  this  Committee.  Men  who  are  rulers  in  practical  finance  are 
frequently  unable  to  hold  their  own  in  anything  like  creditable  shape 
in  a  discussion  of  fundamental  financial  measures  which  it  may  be  pro- 
posed to  enact  into  law. 

English  Cabinet  Members  must  appear  in  Parliament  to  answer  inter- 
pellations, but  notice  of  the  question  is  given  the  day  before  and  a  mem- 
ber of  the  Cabinet  has  ample  time  to  confer  and  to  study  his  answer,  and 
he  may  even  decline  for  state  reasons  to  make  any  answer,  if  he  sees  fit. 
Our  own  Finance  Minister  is  put  in  a  much  more  difficult  position,  how- 
ever, when  he  appears  before  a  Congressional  Committee.  He  knows 
only  the  general  line  that  the  inquiry  will  take.  If  he  is  called  before 
the  Banking  and  Currency  Committee,  he  faces  seventeen  members,  of 
whom  a  large  minority  are  politically  hostile  and  who  are  thoroughly 
trained  in  the  art  of  asking  difficult  questions.  His  answers  become  a 


372  AMERICAN   FEDERAL   GOVERNMENT 

part  of  the  published  records,  and  he  is  placed  in  a  position  where,  if  he 
is  to  make  a  satisfactory  showing,  he  must  reply  off-hand  to  any  question 
that  is  propounded  by  any  member  of  the  Committee.  To  go  through 
such  an  ordeal  with  satisfaction  needs  thorough  understanding  of  the 
subject  and  readiness  of  comprehension  and  retort. 

The  most  important  bureau  in  the  Treasury  Department  is  the  one 
charged  with  the  duty  of  collecting  the  customs.  Not  only  must  this 
bureau,  in  order  that  there  shall  be  no  smuggling,  keep  a  watchful  eye 
upon  15,000  miles  of  coast,  a  Northern  frontier  more  than  three  thousand 
miles  long,  and  a  Southern  boundary  stretching  the  full  breadth  of 
Mexico,  but  it  is  charged  with  the  administration  of  the  most  intricate 
tariff  schedule,  requiring  not  only  fidelity  and  integrity  where  vast  sums 
are  concerned,  but  great  expert  knowledge  in  regard  to  commodities  and 
the  keenest  intelligence  in  the  application  of  that  knowledge.  The  great 
work  of  this  bureau  is,  of  course,  in  the  collection  of  the  customs  levied 
on  regularly  imported  merchandise,  and  that  work  goes  on  with  little 
criticism  and  without  much  friction.  Another  phase,  the  collection  of 
duties  on  articles  brought  home  by  returning  travelers,  is  compara- 
tively insignificant  in  point  of  income,  but  to  a  large  number  of  citizens 
it  is  the  one  point  of  contact  which  they  have  with  the  Department, 
and  it  not  infrequently  leaves  them  ready  to  condemn  and  upbraid.  One 
of  the  difficulties  in  this  part  of  'the  administration  lies  in  the  palpable 
fact  that  it  is  not  easy  to  obtain  a  corps  of  inspectors,  when  Congress  limits 
their  salaries  to  four  dollars  a  day,  who  will  serve  long  hours  at  trying 
duties,  always  maintain  their  equanimity,  and  be  courteous  in  the  face 
of  much  provocation  to  be  otherwise,  and  always  retain  their  integrity 
and  repel  efforts  to  corrupt  them  made  by  people  occupying  positions 
of  high  standing  and  respect  in  the  community.  Under  President  Mc- 
Kinley's  administration  it  was  determined  to  make  the  enforcement  of 
the  law,  as  it  applied  to  returning  travellers,  much  more  rigid  than  had 
been  the  case,  and  the  stricter  enforcement  which  has  since  been  in 
vogue  has  led  to  more  criticism  of  the  Treasury,  probably,  than  has  any 
other  phase  of  its  affairs. 

In  the  minds  of  most  people  a  customs  law  seems  to  be  quite  unlike 
other  laws.  It  is  a  statute  which  it  is  more  or  less  of  a  credit  to  evade, 
and  methods  of  false  witness  and  bribery  may  be  brought  to  bear  with- 
out troubling  the  traveller's  conscience.  It  is  this  peculiarity  of  human 
nature  that  makes  the  task  extremely  difficult.  There  is  much  complaint 
about  the  Treasury  treating  returning  travelers  as  if  their  word  was  not 
to  be  trusted,  and  submitting  their  baggage  to  search  after  sworn  declar- 
ation has  been  made.  Brief  experience,  from  the  inside,  with  this  part 
of  the  Treasury  administration  will  convince  one  how  necessary  such 
an  attitude  is.  As  an  illustration  of  that  statement,  the  case  might  be 
cited  of  fifteen  prominent  citizens  of  New  York  City  who  went  abroad 
two  or  three  years  ago,  and,  on  their  return,  all  submitted  sworn  state- 


THE  DEPARTMENTS  373 

ments  in  regard  to  the  contents  of  their  trunks.  Twelve  declared  they 
had  no  dutiable  articles,  and  the  remaining  three  paid  an  aggregate  of 
$538.  The  next  year  the  same  fifteen  citizens  made  their  annual  Euro- 
pean pilgrimage  and,  on  their  return,  were  met  by  the  stricter  adminis- 
tration of  the  same  law.  In  addition  to  their  sworn  declaration  their 
baggage  was  carefully  examined,  with  a  result  that  they  paid  over  $34,000 
of  duty.  Is  it  small  wonder  that,  after  endless  experiences,  of  which  the 
foregoing  is  but  an  average  illustration,  a  strictness  of  inspection  should 
be  put  in  force  which  is  galling  to  men  who  have  both  honor  and  good 
memories  and  make  out  correct  schedules  of  their  purchases  when  they 
give  their  sworn  declaration  to  a  customs  inspector  ? 

In  the  administration  of  the  customs  there  have  undoubtedly  been 
men  who  were  not  true  to  their  oath  of  office  and  have  accepted  bribes. 
A  considerable  number  of  inspectors  have  at  one  time  or  another  been 
summarily  dealt  with  for  such  offense.  In  the  handling  of  the  vast  sums 
of  money  which  are  a  part  of  the  Treasury's  operations,  there  have,  in 
very  rare  cases,  been  instances  of  petty  pilfering.  Taken  by  and  large, 
however,  the  Treasury  Department  is  a  splendid  great  commercial  ma- 
chine, administered  with  an  integrity  reaching  all  the  way  from  the  head 
of  the  Department  through  the  whole  army  of  its  thousands  of  sub- 
ordinates, an  integrity  of  which  the  country  may  well  be  proud.  Every- 
where in  the  administration  the  interests  of  the  Government  are 
paramount  to  all  else. 


THE  TREASURY  AND  THE  MONEY  MARKET 

[The  vast  sums  of  money  paid  to  the  United  States  government  in  the  form 
of  taxes,  fees,  and  postal  charges  (considerably  over  $1,000,000,000  per  year), 
bring  the  administration  of  the  treasury  into  close  connection  with  the  banking 
industries  and  the  money  market  of  the  United  States.  The  manner  in  which 
the  treasury  has  from  time  to  time  interfered  in  order  to  give  relief  to  the  money 
market  is  illustrated  by  the  following  brief  article  from  the  New  York  Evening 
Post,  March  8,  1907.] 

WHEN  it  became  known  that  George  B.  Cortelyou  was  to  become 
Secretary  of  the  Treasury  on  March  4,  many  persons  went  to  him  and 
asked  what  his  policy  or  policies  would  be,  and  whether  he  intended  to 
"come  to  the 'aid  of  the  market"  when  Wall  Street,  through  speculative 
excesses,  needed  money.  Mr.  Cortelyou  told  all  these  inquirers  that 
he  had  formulated  no  cut  and  dried  programme;  that  he  was  going  to 
take  up  the  problems  of  his  new  office  as  they  confronted  him.  Nearly 
every  one  who  talked  with  the  incoming  secretary,  however,  came  away 
with  the  impression  that  he  would  not  be  so  ready  to  heed  the  cries  for 
help  from  the  New  York  financial  district  as  Mr.  Shaw  had  been. 

In  his  last  annual  report,  Secretary  Shaw  reviewed  his  financial  policy 


374  AMERICAN   FEDERAL   GOVERNMENT 

with  respect  to  the  Treasury's  relations  with  the  money  market.  He  set 
forth  with  detail  and  explanations  his  reasons  for  extending  aid  in  1902, 
1903,  1904,  1905,  and  1906.  What  follows  is  Secretary  Shaw's  own 
account  of  the  reasons  which  influenced  him,  and  which  have  been  so 
widely  discussed  and  criticised.  It  is  set  forth  again  at  this  time  to 
refresh  the  memory  of  those  who  may  be  interested,  and  may  be  used 
as  a  basis  of  comparison  with  whatever  line  of  action  Secretary  Cor- 
telyou  may  determine  to  pursue. 


CONDITIONS  IN  1902 

During  the  summer  of  1902  surplus  bank  reserves  throughout  the 
country  ran  relatively  very  low.  "  Preparatory  for  the  crisis  certain  to 
ensue,"  the  Secretary  of  the  Treasury  caused  to  be  printed  as  much  un- 
ordered national-bank  circulation  as  the  Bureau  of  Engraving  and  Print- 
ing could  turn  out,  in  addition  to  the  ordinary  demands  upon  it,  and  in 
September  of  that  year  offered  to  accept  satisfactory  security  other  than 
Government  bonds  for  deposits  of  public  money  then  held  by  the  banks, 
for  which  this  additional  circulation  had  been  printed,  on  .condition  that 
the  released  bonds  should  be  immediately  made  the  basis  for  circulation. 

He  also  anticipated  the  payment  of  November  interest  due  on  out- 
standing obligations  of  the  Government,  and  offered  to  purchase  for  the 
sinking  fund  any  United  States  4  per  cent  bonds  of  the  loan  of  1925  that 
might  be  offered  at  137!  and  interest  to  date  of  purchase.  He  also 
increased  deposits  in  national  banks  in  a  considerable  sum.  In  these 
several  ways  be  restored  to  the  channels  of  trade  somewhat  over 
$57,000,000  and  stimulated  national  bank  circulation  to  the  extent  of 
$18,000,000.  He  also  issued  an  announcement  that  he  would  not  exer- 
cise the  discretion  given  him  by  statute  to  liquidate  banks  which  fail  to 
maintain  their  reserve  should  they  fail  to  maintain  the  same  against 
deposits  of  Government  money. 

These  operations  were  not  begun,  however,  "until  a  condition  existed 
which  in  the  opinion  of  many  leading  bankers  of  New  York  city  justified 
the  issuance  of  Clearing  House  certificates,  and  when  a  resort  thereto 
was  being  seriously  considered."  Two  of  these  methods  (the  accept- 
ance of  other  than  Government  bonds  as  security  for  deposits,  and  the 
announcement  that  the  discretion  with  which  the  Secretary  of  the  Treas- 
ury is  clothed  by  statute  would  not  be  exercised  against  banks  failing  to 
maintain  reserve  against  Government  deposits)  received  their  full  meed 
of  criticism  at  the  time,  "but  no  lawyer  ever  doubted  their  legality  and 
no  business  man  now  questions  their  necessity. 

"  Financiers  generally  now  recognize,  and  some  of  the  best  known 
have  publicly  announced,  that  but  for  what  was  then  done  a  panic  would 
have  ensued  rivalling  in  severity  any  in  our  history,  and  which  would 


THE  DEPARTMENTS  375 

possibly  have  continued  until  industrial  conditions  were  disastrously 
affected." 

AID  GIVEN  IN  1903 

The  law  authorizes  the  Secretary  of  the  Treasury  to  deposit  in  national 
banks  only  internal  revenue  and  miscellaneous  receipts.  Having  found 
it  impracticable  to  relieve  a  monetary  stringency  with  current  internal 
revenue  receipts;  amounting 'only  to  about  $500,000  per  day,  Secretary 
Shaw  early  in  1903  ordered  their  segregation  and  the  accumulation  of  a 
separate  and  distinct  fund  composed  entirely  of  internal  revenue  and 
miscellaneous  receipts,  so  as  to  be  prepared  in  case  of  an  emergency  to 
grant  prompt  relief  by  large  deposits.  This  practice  has  been  continued. 

During  the  fall  of  1903  there  was  restored  to  the  channels  of  trade  an 
aggregate  of  $27,000,000.  This  was  accomplished  by  purchasing  out- 
standing Government  bonds  for  the  sinking  fund  amounting  to 
$13,000,000  and  by  direct  deposits  in  national  banks  aggregating 
$14,000,000.  National  bank  circulation  was  also  stimulated  to  some 
extent. 

CANAL  PAYMENT  IN  1904 

In  the  spring  of  1904,  by  direct  appropriation  of  Congress,  $10,000,000 
was  paid  to  the  Government  of  Panama,  and  $40,000,000  to  the  Panama 
Canal  Company  for  the  right  of  way  on  which  to  construct  the  canal 
across  the  Isthmus.  Preparatory  to  making  these  payments  pro-rata 
transfers  were  made  of  Government  deposits  from  all  depository  banks 
outside  to  those  within  the  city  of  New  York,  and  the  amount  thus  trans- 
ferred distributed  pro  rata  among  depositories  in  that  city. 

The  payment  of  $40,000,000  to  the  Panama  Canal  Company  on  May  9, 
1904,  was  accomplished  by  the  appointment  of  J.  P.  Morgan  &  Co. 
special  disbursing  agents  for  the  Treasury  Department,  and  a  pay  war- 
rant for  $40,000,000  was  then  issued  to  Clearing  House.  Morgan  &  Co. 
at  once  deposited  an  equal  amount  through  the  same  channel  in  the 
banks,  from  which  the  money  was  drawn  with  which  to  pay  the  warrant. 

As  the  transaction  worked  out,  only  a  few  thousand  dollars  actually 
changed  hands,  money  rates  were  not  affected  in  the  slightest  degree, 
and  not  a  dollar  of  gold  was  shipped  from  this  country.  The  transfer  to 
France  was  skilfully  effected  by  Morgan  &  Co.  through  the  purchase 
from  time  to  time  of  foreign  exchange.  Neither  was  there  any  expense 
to  the  Government,  the  disbursing  agents  volunteering  to  represent  the 
Government  gratis,  and  look  to  the  French  Canal  Company  for  their 
pay.  The  Republic  of  Panama  invested  most  of  the  purchase  price  of 
her  cession  in  the  United  States,  and  thus  shipments  of  money  to  that 
country  were  avoided.  No  purchases  for  the  sinking  fund  were  made 
during  the  year. 


376  AMERICAN  FEDERAL  GOVERNMENT 


OPERATIONS  IN  1905 

"For  reasons  which  cannot  be  fully  explained,"  revenues  fell  off  dur- 
ing the  calendar  year  1904  and  the  early  months  of  1905,  which,  coupled 
with  the  extraordinary  expenditures,  caused  a  deficit  for  the  fiscal  year 
ending  June  30,  1905,  of  $23,000,000.  To  make  good  this  deficit  and 
to  meet  these  expenditures,  $50,000,000  was  withdrawn  from  depositary 
banks.  "These  withdrawals,  however,  were  insufficient  to  inspire  con- 
servatism," and  during  the  summer  the  surplus  reserve  of  the  associated 
banks  of  New  York  City  fell  below  $7,000,000,  while  the  rate  on  call 
money,  fluctuated  from  below  i  to  3^  per  cent,  averaging  for  the  season, 
perhaps,  about  2  per  cent.  The  anticipated  stringency  was  deferred, 
however,  possibly  in  part  by  extensive  refundings  of  Government  bonds 
into  consols  of  1930,  which,  in  conjunction  with  withdrawals  of  deposits, 
lowered  the  price  of  consols  to  a  point  where  banks  found  the  mainten- 
ance of  circulation  profitable,  and  an  increase  of  $25,000,000  resulted. 
"The  crisis  inevitable  came,  though  some  months  belated." 


RELIEF  MEASURES  IN  1906 

In  February  of  1906,  $10,000,000  was  deposited  in  national  bank 
depositaries  in  seven  of  the  principal  cities,  and  satisfactory  security  other 
than  Government  bonds  accepted,  but  with  the  distinct  understanding 
that  it  would  be  recalled  in  July  of  that  year.  "This  relief  was  not  suffi- 
cient, however.  Banks,  everywhere,  West  as  well  as  East,  found  them- 
selves in  the  spring  with  surplus  reserve  exhausted.  The  foreign  exchange 
market  responded  sympathetically  in  a  very  marked  decline  in  sterling 
exchange  sufficient  to  have  insured  the  importation  of  gold  if  the  banks 
had  been  in  position  to  buy  the  exchange  with  which  to  secure  it." 

Secretary  Shaw  then  offered  to  make  deposits,  satisfactorily  secured, 
equal  in  amount  to  any  actual  engagements  of  gold  for  importation,  the 
same  to  be  promptly  returned  when  the  gold  actually  arrived.  In  this 
way  approximately  $50,000,000  (more  than  six  carloads)  in  gold,  largely 
in  bars,  was  brought  from  abroad.  Most  of  this  came  from  Europe, 
but  part  from  Australia  and  South  Africa. 

"This  was  accomplished  without  expense  to  the  Government,  and 
without  profit  to  the  importing  banks,  but  with  great  benefit  to  the  busi- 
ness interests  of  the  country.  The  various  banks  which  imported  this 
gold  lost  in  the  transactions  several  thousand  dollars,  as  established  by 
their  books ;  the  price  of  exchange  promptly  advanced  so  that  merchants 
and  exporters  of  grain  and  cotton  having  exchange  to  sell  were  benefited 
in  excess  of  $150,000,  and  interest  rates  dropped  sufficiently  to  effect  a 
saving  to  borrowers  in  New  York  city  alone  of  more  than  $2,000,000." 


THE  DEPARTMENTS  377 

This  means  of  relieving  financial  stringencies,  which  has  been  once 
since  repeated,  attracted  far  more  attention  throughout  Europe  than  in 
the  United  States,  though  it  has  been  widely  commented  upon  in  both 
places.  "It  has  at  least  demonstrated  that  the  United  States  is  in  a 
position  to  more  effectually  influence  international  financial  conditions 
than  is  any  other  country,  and  justifies  great  caution  lest,  while  protecting 
our  own  interests,  we  cause  distress  elsewhere,  which  will  soon  be  re- 
flected here." 


THE  UNITED   STATES   DEPARTMENT   OF   JUSTICE1 
BY  PROFESSOR  JOHN  A.  FAIRLIE 

THE  Department  of  Justice  has  been  developed  from  the  English 
office  of  Attorney- General,  with  important  features  added  in  the  course 
of  American  experience.  As  early  as  the  reign  of  Edward  I,  almost 
contemporaneous  with  the  appearance  of  a  special  legal  profession  in 
England,  we  find  Crown  Attorneys  (Attornati  Regis)  employed  for 
guarding  the  royal  privileges  in  the  courts.  By  the  time  of  Edward  IV 
the  official  title  of  Attorney-General  appears  for  the  first  time.  A  little 
later,  as  the  distinction  between  barristers  and  solicitors  became  estab- 
lished, the  Crown  lawyers  are  distinguished  as  the  King's  Attorney  and 
the  King's  Solicitor. 

These  law  officers  acted  as  the  legal  advisers  of  the  King  and  his 
ministers,  and  also  conducted  public  prosecutions  in  important  criminal 
cases.  But  there  was  not  developed,  and  has  not  yet  developed  in  Eng- 
land any  system  of  local  public  prosecutors.  Nor  has  the  English 
Attorney-General  become  one  of  the  leading  political  officials  with  a 
seat  in  the  cabinet,  since  political  and  administrative  functions,  which 
have  become  attached  to  the  office  in  this  country,  are  there  performed 
by  the  Lord  Chancellor  and  other  officials. 

Most  of  the  colonies  had  Attorneys-General ;  and  these  officers  were 
continued  under  the  State  governments.  In  the  national  government 
the  office  of  Attorney- General  was  providsd  for  in  the  Judiciary  Act  of 
1789.  For  a  good  many  years  the  work  of  the  office  did  not  require  the 
entire  time  of  the  Attorney-General  and  he  was  permitted,  if  not  ex- 
pected, to  continue  in  private  practice.  The  salary  was  only  $1,500  a 
year,  less  than  that  of  the  other  cabinet  secretaries;  and  not  until  1814 
was  he  required  to  reside  in  Washington.  From  the  first  the  Attorney- 
General  was  a  member  of  the  President's  cabinet ;  but  his  office  was  not 
formally  recognized  as  an  executive  department  until  in  1870  the  Depart- 
ment of  Justice  was  established. 

The  functions  of  the  Attorney- General  and  the  Department  of  Justice 

1  Michigan  Law  Review,  1906. 


378  AMERICAN  FEDERAL  GOVERNMENT 

may  be  considered  in  four  main  divisions:  (i)  as  legal  adviser  to  the 
President  and  the  executive  departments ;  (2)  as  attorney  for  the  United 
States  before  the  courts,  either  as  prosecutor  or  defendant ;  (3)  adminis- 
trative supervision  over  officers  of  United  States  courts  and  over  United 
States  penal  and  reformatory  institutions;  and  (4)  as  adviser  to  the 
President  in  the  exercise  of  his  pardoning  power. 

It  is  the  duty  of  the  Attorney- General  to  give  his  advice  and  opinion 
upon  questions  of  law  when  required  by  the  President  or  by  the  heads 
of  departments  on  any  matter  concerning  their  departments.  Questions 
not  involving  the  construction  of  the  Constitution  of  the  United  States 
may  be  referred  to  subordinates ;  and  their  opinions  when  approved  by 
the  Attorney- General  have  the  same  force  and  effect  as  the  opinions  of 
the  Attorney- General  himself.  Officers  in  the  Department  of  Justice 
must  give  opinions  and  render  legal  services  to  the  President  or  officers 
of  other  departments. 

In  the  discharge  of  these  duties  the  action  of  the  Attorney- General  is 
quasi-judicial.  "His  opinions  officially  define  the  law  in  a  multitude  of 
cases,  where  his  decision  is  in  practice  final  and  conclusive  —  not  only 
as  respects  the  action  of  public  officers  in  administrative  matters,  who 
,are  thus  relieved  from  the  responsibility  which  would  otherwise  attach 
to  their  acts,  —  but  also  in  question  of  private  right,  inasmuch  as  parties, 
having  concerns  with  the  government,  possess  in  general  no  means  of 
bringing  a  controverted  matter  before  the  courts  of  law,  and  can  obtain 
a  purely  legal  decision  of  the  controversy,  as  distinguished  from  an 
administrative  one,  only  by  reference  to  the  Attorney-General.  Accord- 
ingly, the  opinions  of  successive  Attorneys- General  .  .  .  have  come  to 
constitute  a  body  of  legal  precedents  and  exposition,  having  authority 
the  same  in  kind,  if  not  the  same  in  degree,  with  decisions  of  the  courts 
of  justice."  "The  Supreme  Court  will  not  entertain  an  appeal  from 
his  decision,  nor  revise  his  judgment  in  any  case  where  the  law  authorized 
him  to  exercise  his  discretion  or  judgment." 

But  the  Attorney- General  is  under  no  obligation  to  render  an  award, 
or  determine  a  question  of  fact  in  cases  referred  to  him;  nor  does  an 
appeal  to  him  lie  from  another  department  by  any  party  assuming  to  be 
aggrieved  by  its  action,  and  seeking  to  have  it  reviewed;  nor  is  he  to 
give  advice  to  heads  of  departments  on  matters  which  do  not  concern 
their  departments,  and  in  which  the  United  States  have  no  interest ;  nor 
is  he  authorized  to  give  official  opinions  not  falling  within  the  scope  of 
his  duties,  so  as  to  connect  the  government  with  individual  controversies, 
in  which  it  has  no  concern ;  nor  is  he  in  general  to  give  official  opinions 
to  subordinate  officers  of  the  government ;  nor  in  cases  not  actually  pre- 
sented for  action  by  an  executive  department.  He  will  not  answer  ab- 
stract or  hypothetical  questions  of  law ;  nor  purely  judicial  questions  in 
controversy  before  the  courts;  nor  construe  department  regulations. 
He  may,  like  the  heads  of  other  departments,  be  required  to  furnish 


THE  DEPARTMENTS  379 

information  to  Congress ;  but  he  does  not  furnish  legal  opinions  to  Con- 
gress, or  its  committees. 

More  specifically,  it  is  the  duty  of  the  Attorney- General  and  his  as- 
sistants to  examine  all  titles  to  land  purchased  by  the  United  States  for 
the  purpose  of  erecting  public  buildings ;  and  no  money  can  be  expended 
for  land  until  the  title  has  been  approved. 

As  chief  advocate  for  the  government,  the  Attorney- General  has  super- 
vision over  all  actions  at  law  or  suits  in  equity  to  which  the  United  States 
is  a  party  or  in  which  the  United  States  has  an  interest.  Suits  begun  by 
the  government  are  brought  before  a  District,  Circuit  or  Supreme  Court 
of  the  United  States  under  the  provisions  of  the  statutes  regulating  the 
jurisdiction  of  these  courts.  Criminal  cases  include  only  crimes  in  viola- 
tion of  the  statutes  of  the  national  government.  The  largest  number  of 
prosecutions  are  for  violation  of  the  internal  revenue  laws;  a  consider- 
able number  are  for  violation  of  postal  laws,  custom  laws  and  pension 
laws ;  while  a  great  variety  of  other  statutes  are  involved  in  other  cases. 
Civil  suits  are  brought  most  largely  in  connection  with  customs  and 
internal  revenue  administration ;  but  all  of  the  departments  are  involved 
in  some  cases.  Besides  cases  in  which  the  United  States  is  itself  a  party, 
it  has  been  held  that  in  a  suit  between  States  where  the  United  States 
has  an  interest,  the  Attorney-General  may  appear  and  introduce  evi- 
dence and  argument  without  making  the  United  States  a  party  for  or 
against  whom  judgment  may  be  rendered. 

Following  the  rule  of  English  law,  suits  against  the  United  States 
government  are  not  allowed  as  a  matter  of  right.1  But  provision  has 
been  made  for  trying  some  kinds  of  claims  against  the  government  by 
the  creation  of  a  Court  of  Claims  and  a  Court  of  Private  Land  Claims ; 2 
while  claims  for  small  amounts  may  be  brought  before  the  District  and 
Circuit  Courts  of  the  United  States,  and  claims  under  treaty  stipulations 
are  investigated  by  special  commissions.  In  all  these  cases  the  officers 
of  the  Department  of  Justice  act  as  attorneys  for  the  defense  on  the  part 
of  the  government. 

According  to  the  statutes  the  Attorney-General  is  to  conduct  and  argue 
cases  before  the  Supreme  Court  and  the  Court  of  Claims,  except  where 
other  provision  is  made  for  particular  cases.  In  part,  cases  in  the  Court 
of  Claims  are  now  placed  in  the  hands  of  one  of  the  Assistant  Attorneys- 
General  ;  and  even  before  the  Supreme  Court  many  cases  are  conducted 
without  the  personal  appearance  of  the  Attorney- General.  In  the  sub- 
ordinate courts  the  Attorney- General  very  seldom  appears  in  person. 

In  the  countries  of  continental  Europe  the  Minister  of  Justice  appoints, 
or  at  least  selects,  the  judges;  and  exercises  through  his  department  a 

1  Not  even  the  Attorney-General  can  waive  the  exemption    of  the  United   States 
from  judicial  process  or  submit  United  States  property  to  the  jurisdiction  of  the  court  in 
a  suit  brought  against  its  officers.     Stanley  v.  Schwalby,  162  U.  S.,  255. 

2  The  Court  of  Private  Land  Claims  was  abolished  June  30,  1904. 


380  AMERICAN   FEDERAL   GOVERNMENT 

large  administrative  control  over  the  judiciary.  Even  in  England,  the 
Lord  Chancellor  selects  most  of  the  judges  and  has  disciplinary  powers 
over  the  judges  in  the  lower  courts,  as  well  as  some  minor  supervision  over 
the  higher  courts.  Compared  to  the  practice  of  foreign  countries  the 
powers  of  the  Attorney- General  over  the  judicial  administration  are 
very  limited.  He  has  no  power  of  appointing  judges ;  and  while  he  may 
be  consulted  by  the  President  in  reference  to  a  judicial  appointment, 
there  is  no  established  custom  of  asking  his  advice,  still  less  of  accepting 
his  recommendations.  And  the  position  of  the  judiciary  as  an  independ- 
ent branch  of  the  government,  coordinate  with  the  legislative  and  the 
executive,  prevents  any  control  over  their  judicial  acts.  Nevertheless  the 
Attorney- General  has  some  powers  of  administrative  supervision  over 
the  executive  officers  of  the  courts,  similar  to  those  of  a  European  Minister 
of  Justice,  which  serve  to  make  his  position  of  more  importance  in  the 
national  administration  than  that  of  the  Attorneys-General  in  the  States. 

Local  government  attorneys  were  unknown  both  in  England  and  the 
American  colonies.  Criminal  prosecutions  were  ordinarily  begun  by 
private  individuals;  while  the  specially  important  criminal  cases  and 
civil  cases  requiring  a  government  attorney  were  attended  to  by  the 
Attorney- General  arid  his  immediate  staff.  But  the  Judiciary  Act  of 
1789,  organizing  the  United  States  courts,  provided  that  in  each  district 
there  should  be  an  attorney  of  the  United  States  appointed  to  conduct 
government  business  in  the  courts.  At  first  these  district  attorneys  were 
paid  by  fees,  and  probably  gave  only  a  part  of  their  time  to  government 
matters.  But  with  the  development  of  public  prosecutions  in  criminal 
cases,  they  have  become  permanent  salaried  officials ;  while  a  correspond- 
ing class  of  officials  has  also  been  developed  in  the  States. 

District  attorneys  are  now  appointed,  by  the  President  and  Senate, 
for  each  of  the  eighty-six  judicial  districts  of  the  United  States.  Their 
terms  are  four  years,  and  their  salaries  vary  from  $2,000  to  $6,000.  In 
most  districts  there  are  one  or  more  assistant  attorneys  and  clerks. 

It  is  the  duty  of  each  district  attorney  to  prosecute,  in  his  district,  all 
delinquents  for  crimes  and  offenses  cognizable  under  the  authority  of 
the  United  States,  and  all  civil  actions  in  which  the  United  States  are 
concerned.  In  certain  cases  he  must  act  as  attorney  in  suits  where  officers 
of  the  United  States  are  parties;  unless  otherwise  instructed  by  the 
Secretary  of  the  Treasury,  he  must  appear  in  behalf  of  the  defendants  in 
all  suits  against  collectors,  or  other  revenue  officers  in  connection  with 
their  official  duties;  and  he  must  conduct  suits  and  proceedings  under 
the  national  banking  law  which  involve  United  States  officers. 

From  this  statement  it  will  be  seen  that  the  duties  of  the  district  attorney 
are  analogous  to  the  court  functions  of  the  Attorney-General.  The  district 
attorneys  in  fact  stand  in  much  the  same  relation  to  the  District  and 
Circuit  Courts  as  does  the  Attorney-General  to  the  Supreme  Court. 
They  are,  as  has  been  noted,  under  the  general  superintendence  of  the 


THE  DEPARTMENTS  381 

Attorney-General ;  but  it  has  been  held  that  this  does  not  authorize  him 
to  control  the  actions  of  the  district  attorneys  by  general  regulations. 

One  of  the  most  important  branches  of  the  work  of  district  attorneys 
is  their  control  over  criminal  prosecutions.  Limited  as  they  are  to  crimes 
against  the  authority  of  the  United  States,  this  function  is  of  less  impor- 
tance than  that  of  the  prosecuting  attorneys  in  the  States;  but  within 
their  own  field  they  have  the  same  influence.  It  depends  to  a  large  ex- 
tent on  their  action  to  secure  an  indictment,  and  to  carry  on  the  prose- 
cution so  as  to  secure  conviction.  But  in  case  of  neglect  of  duty,  the 
supervision  of  the  Attorney- General  is  more  likely  to  secure  the  removal 
of  the  delinquent  official  than  in  the  States. 

United  States  Marshals  were  also  a  new  creation  of  the  Judiciary  Act 
of  1789;  but  their  functions  correspond  to  those  of  the  old  English  office 
of  sheriff.  Marshals  are  appointed  by  the  President  and  Senate  for  each 
judicial  district  of  the  United  States  for  a  term  of  four  years.  Each 
marshal  has  a  number  of  deputies  to  assist  in  the  duties  of  the  office. 

It  is  the  duty  of  each  marshal  to  attend  the  District  and  Circuit  Courts 
of  the  United  States  when  sitting  in  his  district ;  and  to  execute  through- 
out the  district  all  lawful  precepts  directed  to  him  and  issued  under  the 
authority  of  the  United  States.  The  marshals  and  their  deputies  have 
in  each  State  the  same  powers  in  executing  the  laws  of  the  United  States 
as  the  sheriffs  in  such  State  have  in  executing  its  laws.  They  make  arrests 
and  carry  out  the  judgments  of  the  courts,  seizing  and  selling  property 
under  civil  judgments,  and  transferring  convicted  prisoners  to  the  place 
of  confinement.  They  stand  in  the  same  relation  to  the  peace  of  the 
United  States  as  a  sheriff  to  the  peace  of  the  State.  Under  the  Act  of  1789 
it  was  considered  that  they  had  implied  power  to  summon  the  military 
forces  of  the  United  States  as  a  posse  comitatus;  but  the  Act  of  1878 
prohibited  the  use  of  the  army  in  this  way  except  when  expressly  au- 
thorized by  the  Constitution  or  Acts  of  Congress. 


THE   POST   OFFICE:     ITS   FACTS  AND   ITS 
POSSIBILITIES  1 

BY  R.  R.  BOWKER 

UNCLE  SAM  meets  his  folks  face  to  face  at  the  post  office.  It  is  the 
post  which  brings  each  citizen,  who  may  have  no  other  relations  with  his 
government  in  mind,  into  daily  touch  with  the  United  States.  The 
United  States  Post  Office  Department  is  the  largest  business  system 
and  does  the  largest  single  business  in  the  world.  In  the  year  ending 
June  30,  1904,  it  transmitted  through  71,131  post  offices  approximately 
9,500,000,000  pieces  of  postal  matter,  an  average  of  115  to  each 

1  From  the  Review  of  Reviews,  1904.     Reproduced  in  part,  by  permission. 


382  AMERICAN   FEDERAL   GOVERNMENT 

man,  woman,  and  child  in  the  country,  received  from  all  sources 
$143,582,624,  and  paid  out  $152,362,116,  leaving  a  deficit  of  $8,779,492 
to  be  paid  from  taxes. 

UNITED  STATES  POSTAL  FIGURES 

Under  the  first  Postmaster  General,  the  75  post  offices  of  1789  served 
an  average  of  52,400  persons  each.  Under  his  forty  successors,  there 
has  been  an  increase  of  post  offices  from  1,025  in  1 800-01,  serving  an 
average  of  5,000  persons  each,  to  a  maximum  of  76,945  in  1900-01,  or  a 
post  office  for  less  than  each  thousand  of  population.  The  increase  in 
rural  free-delivery  routes,  making  unnecessary  many  fourth-class  offices, 
has  reduced  the  number  to  71,131  in  1904.  These  are  connected  by 
31,513  mail  routes,  469,818  miles  in  length,  with  annual  travel  in  1904 
of  505,585,526  miles.  Of  these  421  were  electric  car  routes,  covering 
4,945  miles.  A  hundred  years  ago,  the  yearly  postal  receipts  were  about 
half  a  million  dollars,  out  of  which  as  high  as  $100,000  profit  was  returned 
to  the  Government.  In  1900,  the  receipts  passed  the  hundred-million 
point,  but  showed  a  deficit  exceeding  $5,000,000.  The  largest  deficit,  in 
1897,  exceeded  $11,000,000,  but  it  is  estimated  that  the  deficit  for  1905 
will  exceed  $14,000,000. 

When,  in  1845,  our  American  Post  Office  made  a  half-hearted  adop- 
tion of  Rowland  Hill's  reform,  letter  postage  became  5  cents  per  half- 
ounce  under  and  10  cents  over  300  miles;  in  1851,  the  rate  was  made 
3  cents  under  and  6  cents  over  3,000  miles;  in  1863,  the  rate  became 
3  cents  for  all  distances,  and  in  1883,  2  cents;  finally,  the  weight  unit 
at  the  2-cent  rate  was  increased  to  one  ounce.  The  i-cent  postal  card 
came  into  use  in  1872. 


CLASSIFICATION  OF  MAIL  MATTER 

Under  the  present  classification,  written  communications,  including 
all  matter  of  the  nature  of  individual  correspondence,  even  though  printed 
and  all  matter  closed  against  inspection,  constitute  the  first  class,  at  the 
rate  of  2  cents  for  each  ounce  or  fraction  thereof,  up  to  the  limit  of  four 
pounds,  or  i  cent  for  postal  cards  or  private  mailing  cards  (officially 
known  as  " post-cards ").  "Drop-letters"  at  rural  post  offices,  not  in- 
volving free  delivery,  may  be  posted  at  i  cent  each.  The  domestic  rates 
extend  to  Canada,  Mexico,  Cuba,  possessions  of  the  United  States  abroad, 
the  "  Panama  Canal  Zone  "  and  the  United  States  Postal  Agency  at 
Shanghai,  China.  Periodicals  "  entered  at  the  post  office  as  second-class 
matter"  can  be  prepaid  by  publishers  or  news-agents  in  bulk,  at  the  rate 
of  i  cent  per  pound.  The  third  class  includes,  at  the  rate  of  i  cent  for 
each  two  ounces  or  fraction  thereof,  or  8  cents  per  pound,  to  a  limit  of 


THE  DEPARTMENTS  383 

four  pounds,  except  in  the  case  of  a  single  book,  books,  papers,  and  other 
printed  matter,  including  " point"  for  the  blind,  and  proof-sheets  and 
manuscript  copy  therewith ;  but  periodicals  of  the  second  class  may  be 
sent  individually  at  i  cent  for  four  ounces,  or  4  cents  per  pound.  Books 
printed  for  the  blind  may  be  sent  between  public  libraries  or  public 
institutions  and  blind  people,  free  of  postage.  The  fourth  class  includes 
merchandise  at  the  rate  of  i  cent  for  each  ounce  or  fraction  thereof,  or 
1 6  cents  per  pound,  to  a  limit  of  four  pounds,  except  that  seeds,  plants, 
etc.,  may  be  sent  for  i  cent  for  each  two  ounces  or  fraction  thereof.  The 
difficulty  and  needless  cost  of  discriminating  between  third  and  fourth 
class  matter,  and  the  prohibitory  rate  for  the  latter,  have  induced  the 
department  to  recommend  the  inclusion  of  both  these  in  a  new  third 
class,  at  the  rate  of  i  cent  for  each  two  ounces  or  fraction  thereof,  or  8 
cents  per  pound,  a  wise  proposal,  which  is  now  pending  before  Congress. 
Third  and  fourth  class  matter  must  be  prepaid  by  stamps,  except  that 
under  a  recent  law  2,000  or  more  identical  pieces  may  be  prepaid  in 
money  without  stamping. 


NEWSPAPER  POSTAGE 

With  the  purpose  of  encouraging  the  printing  of  newspapers  for  the 
education  of  the  people,  it  was  early  provided  that  newspapers  should 
be  sent  free  of  postage  within  thirty  miles,  and  later,  within  the  county 
of  publication,  except  at  letter-carrier  offices.  In  1879,  a  "bulk  rate" 
of  2  cent  per  pound  was  enacted  for  periodicals  "  entered  at  the  post 
office  as  second-class  matter,"  permitting  publishers  to  prepay  periodicals 
in  bulk  without  affixing  individual  stamps  requiring  individual  cancella- 
tion, a  saving  both  to  the  publisher  and  to  the  post  office.  This  second 
class  was  denned  by  law  to  cover  "  newspapers  and  other  periodical  pub- 
lications, regularly  issued,  at  stated  intervals,  and  as  frequently  as  four 
times  per  year,  bearing  a  date  of  issue  and  numbered  consecutively, 
issued  from  a  known  place  of  publication,  without  substantial  binding, 
and  originated  and  published  for  the  dissemination  of  information  of  a 
public  character,  or  devoted  to  literature,  the  sciences,  arts,  or  some 
special  industry,  and  having  a  legitimate  list  of  subscribers,"  —  exclu- 
sive of  "publications  designed  primarily  for  advertising  purposes,  or  for 
free  circulation,  or  for  circulation  at  nominal  rates." 

Foreign  periodicals  were  included,  and  later,  publications  of  institu- 
tions of  learning,  etc.  In  1886,  this  bulk  rate  was  reduced,  perhaps  as 
a  sop  to  papers  of  political  power,  to  i  cent  per  pound,  a  rate  below 
average  cost,  which  reduction  further  stimulated  the  Post  Office  Depart- 
ment to  hedge  about  this  second-class  rate  with  restrictive  regulations. 
These  restrictions  were  aimed  especially  against  cheap  libraries  or  books 
issued  serially,  which  the  Supreme  Court  has  recently  decided  may  not 


384  AMERICAN  FEDERAL  GOVERNMENT 

be  classed  as  periodicals ;  the  "return  privilege "  accorded  to  news  agents ; 
extravagant  numbers  of  "sample  copies";  periodicals  from  institutions 
of  learning  which  are  really  private  affairs ;  and  advertising  sheets  with 
circulations  forced  by  nominal  rates  or  premiums,  such  as  are  published 
in  great  numbers  at  Augusta,  Me.  The  aggregate  amount  of  periodicals 
mailed  free  or  at  pound  rates  in  1904  was  610,149,073  pounds,  or  over 
305,000  tons. 

Unfortunately,  in  the  endeavor  to  prevent  abuses,  "such  regulations 
as  the  Postmaster  General  may  direct"  have  developed  and  degenerated 
into  an  elaborate  and  perplexing  system  of  restrictions,  now  so  complex 
and  detailed  as  to  occupy  24  pages  of  the  Postal  Rules  and  Regulations 
of  1902,  arbitrarily  applied  and  resulting  in  a  petty  interference  with  the 
periodical  press  comparable  only  with  Russian  censorship.  This  bu- 
reaucratic spirit  has  come  to  such  a  pass  that  well-known  periodicals 
have  been  "  held  up"  in  the  post  office  for  days  because  a  page  of  illus- 
tration or  advertisement  was  slightly  shorter  or  narrower  than  other 
pages,  and  the  legitimate  business  of  the  country  has  been  subject  to 
incessant  annoyances.  When  President  Roosevelt's  attention  was  called 
to  these  absurdities,  with  an  apology  that  such  trivialities  should  be 
brought  before  the  President  of  the  United  States,  he  expressed  with 
characteristic  vigor  his  regret  "that  such  trivialities  should  exist  to  be 
brought  before  the  President."  But  even  the  hands  of  a  President  may  be 
tied  by  red  tape,  and  the  appeal  found  lodgment,  as  usual,  in  the  pigeon- 
holes of  the  very  official  appealed  from,  the  statutory  provision  that  "the 
Postmaster  General  shall  have  the  determination  of  appeals  from  the 
action  of  the  several  Assistant  Postmasters  General"  being  practically 
a  dead  letter.  The  Third  Assistant  Postmaster  General,  though  pursuing 
this  policy  of  restriction,  says,  sensibly,  in  his  recent  report  that  "it  would 
undoubtedly  facilitate  the  work  of  the  department  and  subserve  the 
interests  of  the  publishing  business  if  the  conditions  of  admissibility  were 
made  to  depend  upon  considerations  of  a  more  material  and  less  ideal 
character,  and  class  and  class  distinguished  only  by  physical  tests." 


RATE  COMPLEXITIES 

The  law  itself  provides  a  sevenfold  confusion  of  rates  for  periodical 
publications  of  the  second  class:  first,  free  to  actual  subscribers  within 
the  county  of  publication,  except  through  letter-carrier  offices;  second, 
at  i  cent  a  pound  to  all  offices,  letter-carrier  or  otherwise,  except  the 
office  of  publication  if  that  be  a  letter-carrier  office ;  third,  the  same  rate 
for  weekly  publications  even  at  the  letter-carrier  office  of  publication; 
fourth,  at  i  cent  per  copy  for  "newspapers,"  except  weeklies,  for  delivery 
by  the  letter-carrier  office  of  publication;  fifth,  at  i  cent  per  copy  for 
other  periodicals  within  two  ounces  in  weight  for  delivery  by  the  letter- 


THE  DEPARTMENTS  385 

carrier  office  of  publication ;  sixth,  at  2  cents  a  copy  for  the  same  exceed- 
ing two  ounces  in  weight,  —  all  these  six  rates  applying  to  publisher  or 
news  agent  only;  a  seventh  rate  of  i  cent  for  each  four  ounces  or 
fraction  thereof  being  payable  under  all  these  circumstances  by  the 
public  for  "second-class"  periodicals,  though  for  other  printed  matter 
the  rate  is  8  cents  per  pound. 

The  contradictory  result  is  that  weeklies  printed  in  New  York  will  be 
delivered  in  New  York,  San  Francisco,  or  elsewhere  for  a  cent  a  pound; 
that  any  other  periodical  published  in  New  York  will  be  delivered  in 
San  Francisco  or  anywhere  except  New  York  for  i  cent  a  pound,  but  in 
New  York,  if  a  "  newspaper,"  must  pay  i  cent  for  a  copy  of  any  weight, 
or  if  not  a  weekly  or  a  "  newspaper,"  i  cent  a  copy  under  two  ounces, 
or  2  cents  a  copy  thereover.  These  complexities,  which  propably  are 
not  paralleled  in  any  postal  system  in  the  world,  are  the  direct  result  of 
haphazard  and  piecemeal  legislation.  "This  multiform  classification 
rate,"  says  the  Third  Assistant  Postmaster  General,  "is  a  relic  of  the 
days  when  the  postal  business  was  in  a  more  or  less  primitive  state.  In 
this  day  of  business  methods,  in  government  service  the  lack  of  business 
simplicity  and  uniformity  is  keenly  felt."  As  free  county  circulation  is 
now  of  diminishing  importance,  a  simple  uniform  system  might  include 
all  regular  periodicals  formally  registered  in  the  second  class  at  the  rate 
of  i  cent  per  pound  to  all  regular  subscribers,  and  2  cents  per  pound  for 
all  other  copies ;  or  at  the  rate  of  i  cent  per  pound  except  for  delivery  by 
carrier,  which  should  be  at  2  cents  per  pound. 


THE  PARCELS  POST 

A  "parcels  post"  has  been  a  chief  lack  of  our  postal  system.  In  Great 
Britain,  a  parcel  up  to  three  feet  in  length  may  be  sent  for  threepence, 
or  6  cents,  for  one  pound  or  less,  and  a  penny,  or  2  cents,  for  each  addi- 
tional pound,  making  thirteen  pence,  or  26  cents,  for  the  maximum 
weight  of  ii  pounds.  The  presence  in  the  Senate  of  the  United  States, 
as  Senators  from  New  York,  of  the  chairman  of  its  greatest  railroad 
corporation  and  the  president  of  an  express  company,  is  cited  by  critics 
as  indicating  a  reason  why  the  Post  Office  Department  is  not  authorized 
by  the  law  to  obtain  better  rates  from  railroads  and  to  compete  with 
express  companies  in  sending  parcels. 

Since  1878  there  has  been  no  reduction  in  the  rate  provided  by  law 
for  railroad  transportation  of  mails,  which  figures  out,  per  ton-mile,  $1.17 
on  a  minimum  of  200  pounds  per  day,  18.7  cents  on  a  daily  average  of 
5,000  pounds,  and  5.8  cents  on  each  additional  2,000  pounds  average; 
though  an  express  company  will  carry  for  other  patrons  a  hundred 
pounds  a  thousand  miles  for  $3.50,  being  7  cents  per  ton-mile  (involving 
scarcely  hah0  that  payment  for  railroad  transportation),  and  the  railroads 

25 


386  AMERICAN   FEDERAL   GOVERNMENT 

themselves  carry  a  hundred  pounds  of  freight  a  thousand  miles  for  from 
$i  down  to  35  cents,  being  from  2  cents  down  to  .7  cent  per  ton-mile. 
A  passenger  is  individually  ticketed  and  100  pounds  of  baggage  individ- 
ually checked  at  the  mileage  rate  of  2  cents  per  mile,  equivalent  to  16 
cents  per  ton-mile,  while  commuters  are  carried  as  low  as  J  cent  a  mile, 
or  4  cents  per  ton-mile.  These  figures  suggest  the  need  of  a  revision  of 
contracts,  which  would  largely  offset  the  postal  deficit  and  fully  justify 
and  make  possible  a  proper  parcels  post. 

There  is  now  pending  in  Congress  a  bill  promoted  by  the  Postal  Prog- 
ress League,  establishing  a  parcels  post  at  the  rate  of  i  cent  for  each 
three  ounces,  5  cents  for  a  single  pound,  and  2  cents  for  each  additional 
pound,  making  a  maximum  of  25  cents  for  an  n -pound  parcel.  The 
British  parcels  post  insures  a  parcel  up  to  $10  without  charge,  and  for 
a  registration  fee  of  4  cents  up  to  $25,  with  2  cents  additional  fee  for 
each  $50  up  to  $600;  and  in  some  countries  packages  may  be  mailed 
C.  O.  D.  for  an  additional  fee,  the  valuation  being  collected  and  re- 
turned through  the  post  office. 

The  proposed  consolidation  of  third  and  fourth  class  matter  into  a  new 
third  class  at  i  cent  for  two  ounces,  or  8  cents  per  pound,  would  furnish 
a  domestic  parcels  post  to  the  limit  of  four  pounds,  and  the  objection  that 
the  cost  of  the  possible  3,000  miles  of  land  transportation  in  this  country 
would  involve  loss  on  heavier  parcels  might  be  obviated  by  the  adoption 
of  a  zone  system  corresponding  to  the  standard  time  zones,  under  which 
a  single  rate  might  prepay  within  a  single  zone  or  between  two  adjacent 
zones ;  a  once-and-a-half  rate  to  a  third  zone,  and  a  double  rate  to  a  fourth 
zone ;  so  that  a  parcel  might  be  sent  from  New  York  to  Chicago  for  8  cents, 
to  Denver  for  12  cents,  and  to  San  Francisco  for  16  cents,  a  pound. 

We  have  for  some  time  had  parcels-post  arrangements  with  Mexico, 
the  West  Indies,  and  certain  Central  and  South  American  states,  and 
with  Newfoundland,  New  Zealand,  and  Hong-kong  at  a  price  of  1 2  cents 
per  pound  (to  Chile  and  Bolivia,  20  cents).  A  parcels  post  with  Ger- 
many has  been  experimentally  established,  and  the  arrangement  with 
the  American  Express  Company,  to  which  the  British  Government  was 
driven  by  the  attitude  of  the  United  States,  will  presently  be  replaced  by 
parcels-post  arrangements  with  Great  Britain  and  France.  To  all  the 
countries  of  the  Postal  Union,  an  American  may  send  commercial  papers 
for  5  cents  for  the  first  ten  ounces  and  i  cent  for  each  additional  two 
ounces,  being  8  cents  per  pound,  and  samples  of  merchandise  at  2  cents 
for  the  first  four  ounces  and  i  cent  for  each  additional  two  ounces,  being 
also  8  cents  per  pound. 

FREE-DELIVERY  SERVICE 

The  city  free-delivery  system,  established  in  1863,  is  now  extended 
to  1,100  letter-carrier  post  offices,  and  the  special-delivery  system,  estab- 


THE  DEPARTMENTS  387 

lished  in  1885,  by  which  the  special-delivery  lo-cent  stamp  insures  im- 
mediate delivery  by  messenger,  is  now  in  use  at  all  post  offices.  But  the 
great  boon  to  the  country  has  been  the  rural  free-delivery  service  (de- 
scribed and  illustrated  in  this  magazine  for  January,  1903),  which,  with 
the  electric  trolley,  the  telephone,  the  telegraph,  and  the  traveling  library, 
has  done  so  much  to  relieve  the  isolation  of  that  third  of  our  population 
connected  with  agricultural  pursuits,  and  to  bring  to  them  the  comforts 
and  conveniences  of  city  life.  This  service,  which  began  experimentally 
in  1897  with  44  routes  and  an  appropriation  of  $40,000,  has  increased 
until  in  1904  there  were  24,566  routes,  in  every  State  of  the  Union,  de- 
livering over  900,000,000  pieces  of  mail  matter,  at  a  cost  of  $12,640,070, 
or  about  ij  cents  each.  This  cost  is  more  than  the  receipts  from  such 
matter,  and  in  itself  exceeds  the  postal  deficit,  but  its  value  to  the 
community  is  such  as  to  render  it  one  of  the  best  investments  that 
the  post  office  can  make,  if  any  service  whatever  is  to  be  conducted 
below  cost. 

The  proposal  of  last  year  to  prohibit  rural  carriers  from  carrying  mer- 
chandise has  been  wisely  replaced  this  year  by  a  recommendation  for  a 
low  postage  rate  on  packages  not  exceeding  five  pounds  in  weight  mailed 
from  a  local  post  office  for  delivery  on  a  rural-delivery  route  from  the 
same  office,  to  be  paid  by  a  special  stamp  at  three  cents  per  pound  or 
fraction  thereof.  An  even  rate  of  one  cent  for  four  ounces  might  be  more 
in  line  with  other  postal  rates  and  of  greater  convenience  to  the  people. 
The  new  plan  will  be  of  further  benefit  to  the  rural  community,  and 
though  for  some  years  there  will  be  an  increase  of  expense  over  return, 
the  growth  of  rural  population  and  this  new  source  of  revenue  may  be 
expected  to  make  the  rural  free-delivery  system  almost  if  not  quite 
self-sustaining,  and  its  full  development  may  prove  a  chief  credit 
of  the  present  administration.  An  additional  convenience  has 
been  suggested,  by  the  use  of  a  special  telephone  stamp  which  would 
authorize  a  rural  postmaster  to  telephone  a  message  to  any  telephone 
subscriber. 

The  registry  service  (first  authorized  by  Congress  in  1855),  for  a  fee  of 
8  cents  in  addition  to  regular  postage,  prepaid  with  ordinary  stamps, 
insures  the  registration  of  a  letter  at  each  point  of  its  journey,  a  receipt 
to  the  sender  and  one  from  the  addressee,  and  insurance  up  to  $25  value. 
Post  office  money  orders,  first  in  use  in  1865,  can  now  be  obtained  at  the 
35,094  money-order  offices  for  payment  at  any  specified  money-order 
office,  for  from  3  cents  within  $2.50  to  30  cents  for  $100,  these  rates  cov- 
ering also  Hawaii,  Porto  Rico,  the  Philippine  Islands,  Canada,  New- 
foundland, Cuba,  and  the  United  States  Postal  Agency  at  Shanghai, 
China.  In  1904,  there  were  issued  50,392,554  domestic  money  orders, 
to  the  amount  of  $378,511,407,  paying  the  Government  $2,089,250 
profit. 


388  AMERICAN  FEDERAL  GOVERNMENT 

FOREIGN  POSTAL  FEATURES 

Foreign  postal  systems  have  gone  much  further  than  our  own  in  some 
respects.  Great  Britain,  as  well  as  several  other  countries,  makes  a 
postal  monopoly  of  its  telegraph,  at  the  rate  of  a  halfpenny,  or  i  cent 
per  word,  address  counted,  with  a  minimum  rate  of  sixpence,  or  12  cents, 
for  each  telegraph.  But  the  90,000,000  telegrams  sent  in  1904  involved 
an  operating  loss  of  over  £300,000,  or  $1,500,000.  Great  Britain  has 
also  recently  taken  over  the  telephone  service  as  part  of  the  postal  system, 
but,  as  in  Sweden  and  other  countries,  the  competitive  private  systems 
seem  to  give  more  satisfactory  results.  Postal  savings-banks  exist 
throughout  Great  Britain  as  well  as  in  other  countries,  that  country 
having  at  last  report  14,362  post-office  savings-bank  offices,  with  9,403,852 
accounts,  aggregating  £146,000,000,  or  over  $700,000,000,  an  average 
of  $75  each,  on  which  $17,000,000  interest  was  paid  during  the  year.  A 
system  of  postal  annuities  and  life  insurance  is  connected  with  the  British 
post-office  savings-banks,  but  the  use  of  this  system  at  last  report  was 
confined  to  about  2,500  persons  in  a  year,  and  its  chief  value  seems  to 
have  been  in  keeping  down  the  rates  of  friendly  societies  and  regular  life 
insurance  companies. 

Among  other  foreign  features  are  the  "blow-post,"  or  pneumatic-tube 
service  for  quick  delivery,  as  in  Berlin  and  Paris,  —  a  system  less  desir- 
able here  in  these  days  of  the  telephone  and  our  special-delivery  service. 
Our  own  Post  Office  Department,  however,  uses  pneumatic  tubes  for 
the  transmission  of  mail  matter  between  main  and  branch  offices  in  the 
cities  of  New  York,  Brooklyn,  Philadelphia,  Boston,  Chicago,  and  St. 
Louis.  In  France,  Italy,  and  elsewhere,  local  deliveries  are  expedited 
by  the  use  of  automobiles.  Switzerland  has  a  library  post,  by  which 
packages  can  be  sent  from  or  to  a  public  library  at  about  three  cents  for 
four  pounds;  and  in  Italy,  the  Scandinavian  countries,  and  elsewhere, 
books  may  be  sent  between  the  officially  recognized  libraries,  for  the  use 
of  students,  free  of  postage.  A  bill  for  a  library  post  at  one  cent  per 
pound,  promoted  by  the  American  Library  Association,  is  now  before 
Congress.  Belgium  has  a  curious  stamp,  with  a  detachable  coupon 
reading,  "Not  to  be  delivered  on  Sunday,"  which  is  left  on  the  letter 
when  Sunday  delivery  is  not  required,  but  otherwise  detached. 


DEPARTMENT  ORGANIZATION 

The  Post  Office  Department,  though  it  does  a  wonderful  business  in 
the  interest  of  the  people,  is  handicapped  by  a  traditional  and  bureau- 
cratic internal  administration.  The  Postmaster  General,  who  has  been 
a  cabinet  officer  since  1829,  and  has  a  salary  of  $8,000  only  is  mostly  occu- 
pied in  affixing  to  unread  documents  the  perfunctory  personal  signature 


THE  DEPARTMENTS  389 

required  by  law,  and  in  listening  to  political  applicants,  though  civil 
service  reform  has  much  mitigated  the  political  misuse  of  the  Post  Office. 
His  immediate  staff  includes  First,  Second,  Third,  and  Fourth  Assistant 
Postmasters  General,  the  ranking  Assistant  on  duty  becoming  Acting 
Postmaster  General  in  the  absence  of  the  chief.  Among  these,  the  several 
functions  of  the  department  are  divided,  mostly  without  method,  illogi- 
cally  and  inconveniently,  and  a  bureaucracy  has  grown  up,  without  a 
real  administrative  head,  which  fact  has  been  an  obstacle  in  the  way  of 
postal  progress.  The  House  Committee  on  Postal  Affairs  holds  the 
purse-strings,  and  its  chairman  becomes,  in  fact,  an  outside  executive 
of  the  department,  while  the  many  associations  of  post-office  employees, 
of  which  the  United  National  Association  of  Post-Office  Clerks  of  the 
United  States  is  a  leading  organization,  though  of  excellent  purpose, 
have  devoted  themselves  to  " influencing"  Congressmen  and  punishing 
those  who  prove  refractory.1 

The  Post  Office  Department  needs,  at  the  hands  of  Congress,  an  organ- 
ization which  shall  bring  its  administration  up  to  the  standard  of  private 
corporations,  with  a  well-paid  executive  of  the  highest  ability  as  the  right- 
hand  of  the  cabinet  officer ;  with  competent  superintendents  of  transpor- 
tation; urban  offices  and  delivery;  rural  offices  and  delivery;  special 
delivery  and  registry;  money  orders;  supplies,  equipment  and  repairs; 
correspondence  and  records;  dead  letters;  inspection;  accounting  and 
legal  relations ;  making  together  an  administrative  council  for  the  execu- 
tive, as  in  the  French  post-office  system. 

Meantime,  the  spirit  of  bureaucracy,  especially  exemplified  in  the 
petty  treatment  of  periodical  publishers,  under  restrictions  not  required 
by  law,  should  be  replaced  by  common-sense  business  policy.  The  de- 
partment also  needs  from  Congress  legal  authorization  to  require  from 
the  railroads  transportation  rates  not  greater  than  those  made  to  express 
companies,  and  it  might  not  be  unwise  to  remove  the  drastic  restrictions 
in  the  law  which  forbid  the  use  of  private  service  for  transmitting  cor- 
respondence. The  American  public,  in  its  righteous  indignation  at  the 
uneven  and  often  excessive  rates  of  the  telephone,  telegraph,  express, 
and  railroad  services,  often  forgets  how  wonderfully  and  effectively 
organized  are  these  corporate  administrations;  and  a  comparison  be- 
tween these  and  governmental  postal  administration  would  be  wholesome 
to  both. 

A  REFORMED  SYSTEM  OF  RATES 

To  represent  the  interests  of  the  public,  the  Postal  Progress  League 
and  other  organizations  have  been  formed.  In  1878,  the  Post  Office 

1  Under  the  control  and  pay  of  the  department  are  postmasters  at  71,131  offices,  1,654 
assistant  postmasters,  25,410  clerks  in  first  and  second  class  offices,  11,621  clerks  in  the 
railway  mail  service,  20,761  city  letter-carriers,  and  rural  carriers  on  24,566  routes;  in  all, 
over  155,000  employees,  without  counting  others  partially  or  indirectly  employed. 


390  AMERICAN   FEDERAL   GOVERNMENT 

Department  took  the  wise  course  of  calling  a  conference  of  publishers 
and  other  large  users  of  the  mails  for  consultation  with  the  officers  of 
the  department  in  devising  what  became  the  Act  of  1879.  The  time  has 
come  when  there  should  be  a  revision  of  postal  arrangements  with  the 
public,  not  in  the  shape  of  piecemeal  legislation,  but  in  a  well-considered 
and  unified  plan  of  reform  which  should  command  the  respect  of  Congress 
and  the  people.  The  country  needs  a  simple  system  of  rates,  a  parcels 
post,  a  postal  check,  and  the  better  arrangements  with  foreign  post 
offices  which  they  are  eager  to  make.  A  useful  pamphlet  of  "General 
Postal  Information  for. the  Public,"  recently  issued  by  the  Third  Assist- 
ant Postmaster-General,  and  to  be  had  free  at  the  post  offices,  illustrates 
too  well  the  present  complexity.  Perhaps  the  simplest  system  of  postal 
rates,  of  most  convenience  to  the  Government  and  the  people,  would  be 
somewhat  as  follows :  For  letters,  2  cents  per  ounce,  drop-letters  i  cent ; 
for  postal  cards,  i  cent;  for  periodicals  from  the  office  of  publication 
and  books  from  public  libraries,  in  bulk,  i  cent  per  pound  without  local 
free  delivery,  and  2  cents  per  pound  with  local  free  delivery ;  for  periodi- 
cals and  books  otherwise  mailed,  i  cent  for  four  ounces,  4  cents  per  pound 
and  i  cent  for  each  added  half  pound ;  for  all  else,  a  simple  parcels-post 
system,  including  local  free  delivery,  at  i  cent  for  two  ounces,  8  cents 
per  pound,  and  i  cent  for  each  added  half  pound,  with  half-rate  for 
rural  free  delivery  from  the  local  office  and  extra  rates  on  the  zone  system 
for  extreme  distances  on  packages  above  four  pounds ;  the  abolition  of 
the  "county  fee"  system  and  the  restriction  of  the  franking  privilege 
to  distinctly  official  correspondence ;  and  a  foreign  post,  uniform  to  all 
countries  of  the  Postal  Union,  in  accordance  with  the  general  practice, 
comprehensive  of  the  best  features  of  the  postal  service  of  other  countries. 
Such  a  scheme,  reforming  rather  than  revolutionizing  present  methods, 
classification,  and  rates,  would  greatly  reduce  the  cost  of  the  department, 
possibly  increase  its  revenue  to  the  self-supporting  point,  and  ^permit 
in  the  future  successive  reductions  of  rates.  The  possibilities  of  the  Post 
Office  as  an  agent  for  the  people's  good  are  indeed  great,  and  the  present 
is  a  favorable  time  for  giving  to  our  own  country  a  postal  system  which 
shall  in  no  respect  be  behind  those  of  less-favored  nations. 


POST   OFFICE   DEPARTMENT:   MAIL  FRAUD   ORDERS 

[The  post  office  department  is  the  agency  through  which  the  federal  govern- 
ment comes  into  closest  contact  with  the  body  of  citizens.  The  efficiency  of  its 
operations  as  compared  with  those  of  private  companies  gives  the  citizens  a 
general  criterion  for  testing  the  effectiveness  of  public  administration.  The 
use  of  the  mails  is  a  valuable  privilege,  the  withdrawal  of  which  by  the  govern- 
ment may  be  made  the  instrument  for  punishing  and  preventing  wrong.  The 
postal  authorities  refuse  to  allow  the  mailing  facilities  to  be  used  for  the  pur- 
pose of  practicing  schemes  of  fraud  and  deception.  Controversy  has  recently 


THE  DEPARTMENTS  391 

arisen  about  the  procedure  of  the  department  in  the  matter  of  mail  fraud  orders, 
which  will  be  illustrated  by  the  following  extracts.] 


FRAUD  ORDERS  ISSUED  BY  THE  POST  OFFICE  AUTHORITIES1 

NEW  schemes  of  deception  invite  new  measures  of  prevention.  This 
seems  as  apparent  from  a  study  of  the  Government's  fraud-order  busi- 
ness, as  the  history  of  burglary  shows  the  growth  of  safety  appliances. 
The  Government  has  steadily  tightened  its  rein  over  concerns  using  the 
postal  service  apparently  for  the  purpose  of  cheating  the  public.  This 
forms  a  valuable  agency  for  the  purification  of  advertising  pages. 

Uncle  Sam  has  already  issued  2,180  fraud  orders.  Assuming  that  each 
concern  with  a  get-rich-quick  scheme  had  20,000  victims  —  and  this 
estimate  of  the  average  number  seems  modest  —  a  number  equal  to  one- 
half  of  the  entire  population  of  the  country  has  been  victimized  within 
the  last  fifteen  years.  There  is  no  knowing  how  many  innocent  lambs 
have  been  saved  by  the  postal  shepherds  from  these  wolves  of  small 
finance.  A  respectable  minority  of  the  American  people  might  be  placed 
under  the  designation  "an  easy  mark."  It  is  practically  certain  that 
the  same  fish  must  have  risen  repeatedly  to  the  same  shining  bait,  and  fed 
fat  the  get-rich-quick  fraternity.  Otherwise  there  could  not  have  been  so 
many  of  them. 

At  first  the  executive  departments  of  this  Government  dealt  tenderly 
with  persons  having  get-rich-quick  schemes.  "Fraudulent"  lotteries 
only  were  under  the  ban  of  the  law  of  1872.  The  statute  referred  vaguely 
to  false-pretence  schemes,  but  executive  officers  ignored  this  part  of  it. 
The  president  of  the  famous  Louisiana  lottery  company  was  No.  i  on 
the  list  of  banned  enterprise-managers,  accessible  in  the  dockets  of  the 
department.  But  a  new  law  was  necessary  to  put  his  undertaking  out 
of  business.  "Fraudulent"  was  dropped  in  designating  lotteries  which 
were  not  to  be  permitted.  The  beneficent  was  added  to  the  evil.  After 
that  all  lotteries  looked  alike  to  the  Government.  Under  the  law  which 
proved  the  beginning  of  the  end  for  the  gigantic  Louisiana  swindle, 
which  for  a  generation  had  filched  large  sums  from  Americans  with  a 
speculative  turn  of  mind,  only  registered  letters  and  money-orders  could 
be  withheld.  Subsequently  the  law  was  extended  to  include  all  mail 
matter. 

The  Louisiana  Lottery  people  took  the  case  to  the  Court  of  Appeals 
of  the  District  of  Columbia,  attacking  the  constitutionality  of  the  law. 
Judge  Cox  in  a  long  opinion  upheld  the  law,  taking  the  ground  that  the 
right  of  the  citizen  to  use  Government  postal  facilities  for  the  transmission 
of  mail,  was  not  a  constitutional  right,  but  a  legislative  privilege,  which 
must  be  utilized  according  to  the  conditions  placed  upon  it  by  Congress. 

1  New  York  Evening  Post,  April  25,  1905. 


392  AMERICAN   FEDERAL   GOVERNMENT 

Lotteries,  after  the  downfall  of  the  Louisiana,  have  had  a  hard  time  in 
this  country. 

Judge  Thomas,  in  President  Cleveland's  second  Administration,  had 
fraud  orders  issued  against  a  number  of  persons  whom  he  believed  to 
have  been  acquiring  money  in  tortuous  ways.  His  practice  was  to  issue 
the  fraud  order  and  have  the  mail  held  up  on  plausible  complaint.  In- 
vestigation came  afterward.  If  the  fraud  order  was  found  unwarranted, 
it  was  cancelled.  This  method  was  a  trifle  more  summary  than  that  of 
Judge  Thomas's  successors.  Fraud  orders  are  not  now  issued  until  the 
persons  involved  have  had  an  opportunity  to  be  heard. 

As  lotteries  became  scarce,  the  Post  Office  Department  looked  about 
for  other  game.  It  found  some  in  the  case  of  a  patent-procuring  concern. 
Would-be  inventors,  it  seems,  are  almost  as  numerous  as  plain  every-day 
"suckers."  In  many  respects  it  is  difficult  to  distinguish  between  these 
classes.  The  inventor  furnished  food  for  the  patent  concern.  Putting 
it  out  of  business  by  holding  up  its  mail  marks  one  of  the  earliest  impor- 
tant cases  decided  on  the  ground  of  alleged  fraud,  or  false-pretence,  aside 
from  the  lottery  element.  This  case  was  decided  in  1897.  Even  that 
case  was  complicated  by  the  disbarment  of  the  head  of  the  concern  as  a 
patent  attorney. 

Another  famous  case,  turning  upon  alleged  fraud  and  false  pretence, 
was  that  of  a  concern,  having  headquarters  at  Fairfield,  Me.,  which  sold 
its  victims  materials  and  taught  them  to  make  artificial  flowers.  The 
flowers  promised  to  be  sources  of  great  income  to  the  victims,  but  they 
never  quite  arrived.  Some  defects  appeared  which  could  be  cured  by 
taking  instruction  in  other  lines,  which  the  company  would  give  for  a 
consideration.  After  the  victim  discovered  that  the  corn  was  musty  and 
refused  to  follow  further,  he  was  dropped.  A  Federal  judge,  in  passing 
upon  this  case,  cast  doubt  upon  the  constitutionality  of  the  whole  Fraud- 
Order  law,  but  the  company  had  come  into  an  equity  court  with  hands 
so  unclean  that  he  would  not  attack  the  law  for  its  benefit. 

Still  another  step  in  advance  was  taken  in  the  case  of  a  New  York  con- 
cern which  had  a  scheme  for  selling  fountain  pens  for  $2.50  each,  and 
employing  at  $8  a  week  in  advertising  letter-writing  everybody  who 
bought  a  pen.  It  was  an  endless-chain  scheme,  growing  constantly  wider. 
All  revenues  were  derived  from  the  sale  of  the  pens.  This  inverted 
financial  pyramid  was  not  thought  stable  by  the  Post  Office  people,  and 
the  concern  was  put  out  of  business  by  a  fraud  order,  in  October,  1902, 
after  having  secured  19,000  patrons. 

A  most  gentlemanly  scheme,  having  no  end  of  imitators,  started  by  a 
diamond  company  in  San  Francisco,  came  to  grief  about  a  year  ago, 
through  the  squeamishness  of  the  postal  authorities.  This  was  such  a 
beneficent  scheme,  and  the  men  behind  the  "graft"  showed  such  pious 
good  faith,  that  the  Department  actually  apologized  for  being  obliged 
to  attack  it,  and  point  out  its  financial  fallaciousness.  It  was  proposed  to 


THE  DEPARTMENTS  393 

give  a  $160  diamond  to  everybody  who  would  pay  $80  in  weekly  instal- 
ments, thus  putting  each  investor  almost  in  the  position  of  the  chattel 
loan  man.  The  company  depended  upon  lapses  to  "make  good."  Pos- 
tal authorities  said  that  was  impossible,  and  the  honest  promoters  went 
under  the  shadow  of  the  ban.  All  its  fellows  have  followed  suit.  This 
seems  the  lineal  descendant  of  certain  bond-investment  schemes,  which 
at  one  time  promised  great  possibilities. 

Having  gone  to  the  limit  in  hunting  down  schemes  of  an  alleged  fraudu- 
lent character,  the  postal  authorities  swung  back  toward  the  lottery  idea, 
as  it  invaded  guessing  enterprises.  This  included  guessing  for  prizes  as 
to  the  attendance  at  the  St.  Louis  Fair,  and  guessing  the  number  of 
ballots  cast  for  Roosevelt  or  for  Parker.  These  cases  brought  out  last 
November  an  opinion  by  Attorney- General  Moody,  holding  the  Fraud- 
Order  law  constitutional.  Before  that,  attorneys-general  held  almost 
uniformly  the  opposite  view.  Mr.  Moody  followed  the  United  States 
Supreme  Court  in  the  case  of  Public  Clearing  House  against  Coyne,  and 
the  New  York  Court  of  Appeals  in  the  Lavin  case.  A  formal  judicial 
opinion  had  held  that  a  cigarette  guessing  contest  was  legitimate.  But 
Mr.  Moody  and  the  courts  he  followed  found  elements  of  lottery  in  guess- 
ing contests.  He  also  found  that  the  term  "due  process  of  law,"  in  the 
Constitution,  may  mean  hearing  and  action  by  an  executive  department, 
when  the  parties  have  recourse  to  the  courts,  if  aggrieved. 

As  it  now  stands,  the  powers  of  the  Post  Office  Department  are  most 
broad  and  sweeping.  Racing  schemes,  bond  investment  schemes,  em- 
ployment schemes  on  the  endless-chain  plan,  guessing  schemes,  and  all 
other  such  devious  devices  for  getting  into  the  private  pocket  of  the  pub- 
lic, are  banned.  Not  only  are  advertisers  of  such  schemes  in  danger,  but 
even  the  periodicals  which  run  the  advertisements  may  be  excluded  from 
the  mails.  It  is  not  necessary  for  the  Department  to  prove  actual  fraud, 
but  it  may  act  on  proof  of  advertising  a  scheme  of  finance  not  feasible. 
Newspapers  must  look  carefully  at  their  circulation  schemes.  The 
Woman's  World  came  to  grief  after  landing  $500,000  good  American 
dollars. 

Fraud  orders  grow  by  seasons.  The  harvest  time  is  between  September 
and  May,  when  the  good  American,  surrounded  by  his  household  gods, 
reads  the  alluring  advertisements  and  becomes  impromptu  a  financier. 
In  1899  fraud  orders  numbered  99;  in  1901,  62,  and  in  each  of  the  years 
1902  and  1904  they  numbered  247.  If  one  has  visions  of  high  finance, 
before  plunging  he  may  do  well  to  ponder  the  warning:  "The  fraud 
order  man  will  get  you  if  you  don't  watch  out." 


394  AMERICAN   FEDERAL   GOVERNMENT 

SPEECH   OF  HON.   EDGAR   D.   CRUMPACKER   ON  THE 
POST-OFFICE  APPROPRIATION  BILL1 

MR.  CRUMPACKER  said: 

Mr.  Chairman :  I  will  take  advantage  of  the  opportunity  afforded  by 
the  debate  upon  this  bill  to  submit  some  additional  remarks  upon  the 
bill  providing  for  a  judicial  review  of  fraud  orders  issued  by  the  Post- 
master-General, which  passed  the  House  some  weeks  ago.  There  seems 
to  be  some  misunderstanding  respecting  the  scope  and  purpose  of  that 
bill,  based,  as  far  as  I  am  able  to  learn,  upon  a  careless  or  willful  mis- 
representation of  its  provisions  by  individuals  who  seem  to  have  little 
regard  for  the  truth.  It  has  come  to  be  quite  the  fashion  when  any 
legislation  is  proposed  that  curtails  or  modifies  power  that  is  being 
exercised  by  a  bureau  officer  in  one  of  the  Departments,  however  wise 
and  just  the  measure  may  be,  for  some  dilettante  reformer  who  is  long 
on  theory  and  short  on  practical  wisdom,  and  who  has  no  faith  in  the 
common  people  nor  respect  for  the  integrity  of  the  courts,  to  open  up  a 
tirade  against  the  measure  and  to  asperse  the  Representative  who  may 
propose  it  and  all  those  who  give  it  support. 

I  have  observed,  also,  that  some  of  the  chiefs  of  bureaus  in  the  Depart- 
ments stubbornly  resist  every  attempt  to  reduce  or  modify  the  power 
they  exercise  or  to  reduce  in  any  measure  the  appropriations  for  the  ad- 
ministration of  their  bureaus.  It  is  not  always  a  question  of  patriotism 
or  public  good  with  them,  but  often  a  question  of  personal  and  official 
aggrandizement.  Some  bureau  chiefs  have  gone  so  far  in  their  opposition 
to  just  and  prudent  measures  as  to  inspire  unjust  attacks  upon  Members 
advocating  them  and  to  recklessly,  at  least,  misrepresent  their  purpose 
and  effect.  These  officers  seem  to  have  no  difficulty  in  securing  means 
of  communicating  their  opposition  to  the  public.  There  are  individuals 
engaged  in  newspaper  and  magazine  work  who  are  willing  to  believe 
anything  that  may  be  told  them  by  a  bureau  chief  in  disparagement  of 
the  ability  and  integrity  of  a  representative  of  the  people,  and  without 
inquiry  or  investigation  they  send  out  broadcast  over  the  country  gross 
misstatements  concerning  the  provisions  and  purposes  of  proposed 
legislation.  Those  individuals  seem  to  be  imbued  with  the  idea  that  this 
is  a  government  of  the  bureaus,  by  the  bureaus,  and  for  the  bureaus, 
and  that  any  proposition,  however  wise  or  salutary,  that  in  any  degree 
minimizes  the  dignity  or  power  of  a  bureau  chief  must  of  necessity  be 
against  the  public  good.  It  is  human  nature  for  one  who  is  in  the  enjoy- 
ment of  autocratic  authority  to  resist  every  attempt  made  to  limit  or 
modify  the  exercise  of  that  authority. 

The  House  has  a  most  salutary  rule  that  prohibits  legislation  upon 
general  appropriation  bills.  The  object  of  the  rule  is  to  prevent  "  riders  " 

1  Congr.  Record,  Feb.  19,  1907. 


THE  DEPARTMENTS  395 

from  being  attached  to  appropriation  bills  and  to  secure  the  consideration 
of  each  measure  independently  upon  its  own  merits. 

Recently  a  newspaper  correspondent,  prompted  by  personal  enmity 
or  a  general  malicious  instinct,  assailed  a  Member  of  the  House  for 
making  a  point  of  order  against  an  item  of  legislation  that  was  contained 
in  a  general  appropriation  bill  in  violation  of  the  rules  of  the  House. 
The  fact  that  the  point  of  order  was  sustained  and  the  action  of  the 
Member  upheld  by  the  presiding  officer  made  no  difference  to  the  corre- 
spondent. He  wanted  a  story.  Intelligent  and  fair  criticism  of  proposed 
legislation  is  of  great  good,  but  unjust  and  dishonest  criticism  is  destruc- 
tive of  confidence  in  public  men  and  even  in  government,  and  it  does  in- 
calculable harm.  Members  of  Congress  must  always  be  free  to  propose 
and  support  measures  they  honestly  believe  to  be  for  the  public  good, 
and  no  Department  officer  should,  under  any  circumstances,  feel  justified 
in  misrepresenting  measures  or  in  imputing  bad  faith  to  Representatives 
who  propose  or  support  them. 


THE  FRAUD-ORDER  LAW  AND  ITS  ADMINISTRATION 

The  criticism  of  the  bill  for  a  judicial  review  of  fraud  orders  has  been 
chiefly  a  misrepresentation  and  perversion  of  its  provisions.  Under  the 
existing  law  the  Postmaster-General  may  issue  a  fraud  order  against 
any  person  whom  he  believes  is  using  the  mails  for  criminal  or  fraudulent 
purposes,  and  the  law  provides  for  no  notice  to  the  person  to  be  effected 
and  no  opportunity  for  him  to  appear  and  defend  himself.  A  fraud  order 
is  an  order  issued  by  the  Assistant  Attorney-General  of  the  Post  Office 
Department,  in  the  name  of  the  Postmaster-General,  to  the  postmaster 
where  the  accused  receives  his  mail,  directing  him  to  pay  no  money 
orders  to  the  accused  and  to  deliver  no  mail  to  him,  but  to  stamp  all 
mail  that  comes  to  him  with  the  word  "fraudulent"  and  return  it  to  the 
writer  where  the  envelope  bears  a  return  card ;  otherwise  to  forward  it 
immediately  to  the  Post  Office  Department,  to  be  disposed  of  through 
the  dead-letter  office.  The  order  covers  all  mail,  business  or  social,  with- 
out discrimination.  In  many  and  perhaps  in  most  instances,  as  a  matter 
of  favor,  the  Department  notifies  the  person  to  be  effected  by  a  fraud 
order  and  gives  him  an  opportunity  to  appear  and  show  cause,  if  he  can, 
why  the  order  should  not  be  issued.  The  hearing  is  voluntary,  and  is 
conducted  by  the  Assistant  Attorney-General,  who  is  bound  by  no  rules 
and  follows  no  fixed  course  of  procedure.  In  some  cases  no  notice  is 
given  at  all.  The  law  does  not  require  it,  and  the  Assistant  Attorney- 
General  decides  when  notice  shall  be  given  and  when  not.  In  numerous 
instances  fraud  orders  have  been  issued  upon  the  mere  confidential 
report  of  a  post-office  inspector,  without  any  notice  whatever  to  the  person 
affected  or  any  opportunity  to  disprove  the  charges  against  him. 


396  AMERICAN  FEDERAL   GOVERNMENT 


CHARACTER  OF  EVIDENCE  UPON  WHICH  FRAUD  ORDERS  ARE  ISSUED 

Now,  I  want  to  say  a  few  words  in  regard  to  the  evidence  upon  which 
the  Assistant  Attorney-General  acts  in  issuing  fraud  orders.  I  stated  a 
moment  ago  that  his  action  was  based,  in  the  main,  upon  confidential 
reports  which  were  the  result  of  secret  investigations  by  post-office  in- 
spectors. They  constitute  the  bulk  of  the  evidence.  The  Assistant 
Attorney- General  for  the  Department  is  himself  first  convinced,  and 
then  he  notifies  the  person  affected  by  the  proposed  action  to  appear 
and  show  cause,  without  allowing  him  to  see  the  report  or  know  what  it 
contains.  He  is  at  once  the  prosecuting  attorney,  judge,  and  executioner, 
and  the  privilege  of  appearing  before  that  officer,  who  has  already  made 
up  his  mind,  to  refute  evidence  that  he  can  know  nothing  about  is  one 
without  any  practical  value. 

The  Supreme  Court  has  held  that  the  fraud-order  power  may  be 
conferred  upon  the  Postmaster- General  because  the  right  to  the  mail 
is  a  privilege  and  not  a  vested  right  and  that  the  proceeding  is  not  crimi- 
nal in  its  character.  While  this  may  be  the  correct  constitutional  theory, 
yet  the  party  against  whom  a  fraud  order  is  issued  is  branded  as  a  crimi- 
nal and  stigmatized  as  a  perpetrator  of  fraud.  It  makes  him  an  outlaw 
as  far  as  one  of  the  most  important  branches  of  the  Government  is 
concerned.  The  issuance  of  such  an  order  covers  all  his  mail  and 
deprives  him  of  the  right  to  communicate  with  his  friends,  his  wife, 
or  his  mother,  or  to  receive  any  communication  from  them  by  means  of 
the  mails. 

All  of  this  is  done  upon  confidential  reports,  the  result  of  secret  investi- 
gations based  upon  ex  parte  statements  of  persons  whose  motives  can 
not  be  known,  who  may  be  responsible  or  who  may  be  irresponsible,  who 
may  not  be  competent  witnesses,  and  who  are  not  sworn  and  do  not 
carry  the  responsibilities  of  ordinary  witnesses.  Their  names  and  iden- 
tity are  not  disclosed,  and  their  evidence  does  not  contain  one  single 
safeguard  against  fraud  or  one  single  test  of  credibility.  Such  evidence 
would  not  be  received  in  the  humblest  magistrate's  court  of  the  country 
in  a  case  involving  the  investigation  of  the  most  inconsequential  right 
of  person  or  property. 

The  confidential  nature  of  such  reports  and  the  statements  they  contain, 
including  the  names  of  persons  giving  information,  is  such  that  they  are 
never  made  public  or  disclosed  to  the  parties  vitally  affected  by  them. 
About  a  year  ago  this  House  adopted  a  resolution  requesting  the  Post- 
master-General to  furnish  it  with  the  facts  upon  which  a  certain  fraud 
order  was  issued  and  copies  of  the  inspector's  reports  in  the  case,  and 
that  officer  politely  and  respectfully  returned  the  resolution  to  the  House 
with  the  statement  that  it  would  not  be  compatible  with  the  public  inter- 
est to  comply  with  the  request. 


THE   DEPARTMENTS  397 

The  investigation  and  decision  of  fraud-order  cases  under  the  practice 
in  the  Department  is  necessarily  made  by  the  Assistant  Attorney-General. 
During  the  two  years  ending  June  30  last  660  fraud  orders  were  issued 
and  a  number  of  cases  investigated  where  the  accused  agreed  to  modify 
his  advertising  matter  so  that  it  would  conform  to  the  ideas  of  propriety 
of  the  Assistant  Attorney- General,  thereby  obviating  the  issuing  of  an 
order  excluding  him  from  the  mails.  Over  one  case  a  day  had  to  be 
examined  and  decided,  and  it  would  be  out  of  the  question  for  the  Post- 
master-General to  give  his  personal  attention  to  the  examination  and 
decision  of  these  cases  and  attend  to  the  other  arduous  and  multifarious 
duties  of  his  office.  The  Assistant  Attorney-General  devotes  the  bulk 
of  his  time  to  the  fraud-order  business.  He  refers  complaints  to  post- 
office  inspectors,  examines  reports,  decides  questions  of  law  and  fact, 
hears  matter  in  defense,  and  practically  has  the  decision  of  the  ultimate 
question  as  to  whether  a  fraud  order  shall  be  issued  or  not,  although  the 
work  is  done  in  the  name  of  the  Postmaster-General.  It  is  a  matter  of 
common  experience  that  men  who  represent  the  Government  in  hunting 
down  and  ferreting  out  fraud  and  in  conducting  prosecutions  become 
imbued  with  an  official  prejudice  to  such  an  extent  as  to  unfit  them  to 
deal  justly  between  their  own  client  and  paymaster  and  one  whose 
interests  may  be  adverse.  I  do  not  say  this  in  disparagement  of  this  class 
of  officials,  but  a  man  who  has  the  zeal  and  enthusiasm  necessary  to 
make  a  success  of  the  work  in  which  he  is  engaged,  unless  he  be  excep- 
tionally even  tempered  and  well  poised,  is  most  apt  to  become  inoculated 
with  that  official  bias  that  will  prevent  his  dealing  justly  with  those  whose 
interests  he  may  have  in  charge. 

The  Assistant  Attorney-General  is  a  detective  in  a  large  sense,  to  hunt 
down  frauds,  and  is  the  prosecutor  to  convict  the  perpetrators,  and  in 
the  fraud-order  practice  he  is  the  judge  and  jury  to  pass  upon  their  guilt 
or  innocence.  In  view  of  the  vital  questions  that  are  involved  directly 
and  impliedly  in  the  fraud-order  practice,  it  is  a  most  unsafe  thing  to 
intrust  an  officer  of  this  kind  with  such  unlimited  power.  This  Govern- 
ment is  said  to  be  a  Government  of  law  and  not  of  men.  The  personal 
and  property  rights  of  the  citizens  should  not  be  vitally  affected  by  any 
Department  of  Government,  excepting  in  pursuance  of  law.  In  the 
execution  of  the  fraud-order  law  much  may  depend  upon  the  tempera- 
ment and  the  ideals  of  the  Assistant  Attorney- General.  One  person 
occupying  that  position  may  have  peculiarly  high  notions  of  business 
ethics  and  little  or  no  patience  with  men  who  do  not  deal  absolutely 
fairly  with  their  fellows.  On  the  other  hand,  another  may  have  lax  ideas 
respecting  these  matters  and  much  sympathy  for  wrongdoers.  Under  a 
practice  where  the  result  must  of  necessity  be  largely  colored  by  the 
temperament  and  sentiment  of  a  departmental  official,  the  vital  concerns 
of  the  citizens  ought  not  to  be  reposed. 

I  desire  to  impress  upon  the  House,  in  addition,  the  dangerous  char- 


398  AMERICAN   FEDERAL   GOVERNMENT 

acter  of  the  method  of  presenting  proof  on  the  part  of  the  Government 
in  fraud-order  cases.  The  same  zeal  that  I  have  referred  to  in  connection 
with  the  Assistant  Attorney- General  characterizes  the  action  of  the  post- 
office  inspectors.  There  seems  to  be  a  belief  or  feeling  on  the  part  of 
these  functionaries  that  unless  they  are  able  to  discover  official  irregu- 
larities or  individual  delinquencies  in  connection  with  the  mails  their 
records  as  efficient  officers  will  suffer.  Their  investigations  are  made 
secretly  and  contain,  largely,  interviews  with  citizens  in  various  com- 
munities which  are  always  private,  and  the  names  of  the  citizens  who 
give  information  are  to  be  kept  inviolate. 

How  many  men,  prompted  by  feelings  of  envy  or  jealousy  against  a 
business  rival,  with  the  understanding  that  their  names  will  not  be  dis- 
closed under  any  circumstances,  will  be  prompted  to  give  information 
that  may  be  largely  colored  by  business  jealousy  or  personal  envy  — 
information  that  as  citizens  carrying  the  responsibilities  of  a  witness  in 
public  they  would  under  no  circumstances  feel  at  liberty  to  give.  Such 
testimony  is  a  positive  menace  to  the  safety  of  person,  reputation,  and 
property  under  any  system  of  administration.  It  is  contrary  to  the  com- 
monest notions  of  justice  and  fair  dealing.  Due  process  of  law,  as  is 
commonly  understood  in  our  system  of  government,  means  that  process 
of  law  that  is  administered  in  the  open,  where  the  accused  party  may 
have  a  right  to  confront  his  accusers ;  where  those  who  give  testimony 
on  either  side  must  carry  the  solemn  responsibilities  of  their  conduct 
before  the  public. 

I  have  no  sympathy  with  or  respect  for  the  policy  that  affects  the  im- 
portant rights  of  person,  reputation,  or  property  by  means  of  confidential 
reports  of  secret  emissaries  of  the  law.  Reports  containing  evidence 
respecting  the  rights  of  the  citizen  should  always  be  made  public.  No 
consideration  of  delicacy  or  embarrassment  should  justify  the  Govern- 
ment in  blasting  the  reputation  and  ruining  the  business  of  a  citizen 
without  giving  him  an  opportunity  to  know  exactly  who  has  testified 
against  him  and  to  what  he  has  testified.  The  reports  of  inspectors  under 
any  practice  should  be  open  to  the  person  who  may  be  affected  by  the 
fraud  order.  He  should  be  allowed  to  know  who  have  given  information 
or  testified  against  him,  and  citizens  who  are  interviewed  should  under- 
stand that  their  names  and  statements  would  be  open  to  inspection  by 
the  person  against  whom  they  testify  or  give  information.  This  would 
have  a  most  wholesome  and  salutary  influence.  Men  would  see  that 
the  statements  that  were  written  up  by  the  post-office  inspectors  and 
credited  to  them  were  fair  and  just  and  absolutely  true.  There  should  be 
no  inducement  or  opportunity  for  men  to  attempt  to  stab  the  business 
or  reputation  of  rivals  in  the  dark. 

Even  under  the  present  law  the  investigation  of  fraud-order  questions 
should  be  conducted  in  as  open  a  manner  as  possible.  Star-chamber 
procedure  has  no  place  in  the  administration  of  rights  in  this  Govern- 


THE   DEPARTMENTS  399 

ment.  It  is  contrary  to  the  spirit  of  the  age.  The  whole  fraud-order 
practice  in  the  Post  Office  Department,  however  honest  and  pure  the 
intentions  and  purposes  of  its  administrators  may  be,  is  out  of  harmony 
with  the  principles  of  individual  liberty,  and  it  ought  to  be  discontinued. 
There  is  no  adequate  excuse  for  it.  It  is  claimed,  I  know,  that  if  reports 
were  made  public  and  the  names  of  men  who  give  information  were  dis- 
closed it  would  be  difficult,  if  not  impossible,  for  post-office  inspectors 
to  secure  necessary  information  in  this  class  of  cases.  I  make  the  asser- 
tion that  a  citizen  who  will  not  give  testimony  except  upon  condition 
that  his  name  be  withheld  from  the  public,  and  particularly  from  the 
individual  against  whom  he  testifies,  as  a  rule  is  not  worthy  of  credence. 
His  testimony  is  to  be  suspected  and  should  not  be  regarded  as  sufficient 
to  deprive  any  citizen  of  any  substantial  right. 

The  Federal  criminal  code  imposes  penalties  for  almost  every  act  that 
would  justify  the  issuing  of  a  fraud  order.  If  post-office  inspectors,  in 
investigating  crimes  and  frauds,  would  investigate  them  with  a  view  of 
detecting  the  perpetrators  and  their  reports  should  be  immediately 
transmitted  to  the  Department  of  Justice,  where  instructions  could  be 
sent  to  arrest  the  criminals,  it  would  largely  tend  to  stop  the  practice  of 
debauching  the  mails.  The  Postmaster-General,  in  his  recent  report, 
claims  that  under  the  fraud-order  practice  lotteries  and  other  criminal 
concerns  have  almost  been  driven  out  of  existence.  In  my  humble  judg- 
ment, if  there  were  no  penalty  excepting  that  of  a  fraud  order,  the  country 
would  be  overrun  with  lotteries,  "green-goods"  institutions,  and  other 
criminal  concerns  to-day.  The  criminal  laws  have  suppressed  lotteries 
and  "green-goods"  dispensers.  They  have  been  the  efficient  power  in 
purifying  the  mails  and  protecting  them  against  the  schemes  and  devices 
of  evil  doers. 

In  making  these  criticisms  of  the  fraud-order  practice,  it  is  not  my 
intention  to  reflect  in  any  degree  upon  the  Postmatser-General,  the 
assistant  attorney-general  for  the  Post  Office  Department,  or  of  any 
other  official.  The  result  is  the  necessary  and  logical  outcome  of  the 
arbitrary  system  of  investigation  authorized  by  the  statutes.  It  is  not 
the  fault  of  the  officers  personally,  but  the  fault  of  the  system,  and  it  is 
the  system  that  I  am  complaining  about  and  which  I  believe  ought  to 
be  materially  modified. 


EXPANSION  OF  FRAUD-ORDER  POWERS 

If  the  fraud-order  law  were  now  administered  according  to  its  original 
purpose  and  intention,  I  would  be  the  last  man  to  raise  my  voice  against 
it,  arbitrary  and  despotic  though  it  seems.  I  have  no  use  for  criminals 
and  swindlers  who  seek  to  debauch  the  mails  for  unlawful  purposes,  but 
where  men  who  honestly  believe  they  are  innocent  of  violations  of  law 


400  AMERICAN   FEDERAL   GOVERNMENT 

are  denied  the  right  of  the  mails  and  branded  with  infamy  I  believe  they 
should  be  accorded  the  privilege  of  going  into  court  and  proving  their 
innocence  if  they  can. 

The  fraud-order  law  was  originally  intended  to  enable  the  Postmaster- 
General  to  withhold  mails  from  the  promoters  of  lotteries,  "  green-goods  " 
institutions,  get-rich-quick  concerns,  and  fly-by-night  affairs  that  were 
essentially  and  palpably  fraudulent  and  criminal.  It  was  not  intended 
that  it  should  interfere  with  old  established  business  institutions  that 
could  be  reached  through  the  civil  and  criminal  courts,  but  during  the 
last  two  or  three  years  a  surveillance  has  been  instituted  over  old  estab- 
lishments using  the  mails  in  a  mail-order  business,  and  numerous 
concerns  of  that  kind  have  been  brought  before  the  Assistant  Attorney- 
General  and  subjected  to  all  manner  of  embarrassment  and  humiliation, 
and  in  some  instances  fraud  orders  have  been  issued  against  them  and 
their  business  and  reputations  forever  ruined.  It  is  the  ambitious  policy 
of  the  Assistant  Attorney-General  for  the  Department  in  the  fraud-order 
line  during  the  last  few  years  that  has  subjected  this  salutary  power  to 
the  criticism  that  it  is  receiving  all  over  the  country  at  this  time.1 

1  Opinion  expressed  by  a  Writer  in  the  North  American  Review,  April,  1907  : 

In  administering  the  present  law  the  Department  has  been  so  consistently  reasonable 
that  there  is  little  apparent  occasion  for  recourse  to  the  courts.  There  is  no  opposition 
on  the  part  of  the  Department  to  such  an  amendment  as  will  give  court  review,  if  it  does 
not  deprive  the  Department  of  its  present  immediate  effectiveness  and  therefore  of  its  entire 
usefulness  in  this  means  of  public  protection.  There  can  be  no  objection  to  every  man 
having  the  right  of  appeal  to  the  courts  against  any  possible  or  apparent  injustice;  but 
to  carry  that  right  so  far  as  to  take  away  the  force  of  the  order,  to  vitiate  its  effectiveness, 
or  remove  the  matter  from  the  jurisdiction  of  the  Department  during  court  review,  would 
obviously  render  the  position  of  the  Department  unreasonably  embarrassing;  as  by  law 
it  would  be  expected  to  protect  the  public  while  handicapped  by  an  amendment  rendering 
it  powerless  to  do  so. 

The  present  statutes  overcome  conditions  with  which  the  ordinary  machinery  of  the 
law  is  inadequate  to  deal.  The  convenient  and  almost  necessary  facility  of  communica- 
tion afforded  by  the  Post  Office  Department  and  the  freedom  of  communication  from 
inspection  obviously  lay  the  service  open  to  grave  abuse.  Without  this  authority  which 
enables  the  Postmaster-General  to  act  quickly  and  effectively  when  unlawful  use  of  mails 
is  established,  the  public  would  be.  constantly  at  the  mercy  of  hordes  of  rascals  who  have 
become  expert  inventors  and  promoters  of  devices  to  defraud. 

It  is  not  the  law,  but  the  law's  delay,  which  the  operators  of  fraudulent  methods  would 
be  glad  to  obtain.  For  it  must  be  borne  in  mind  that  many,  if  not  most,  of  the  schemes 
to  defraud  are  of  the  fly-by-night  order;  of  the  kind  whose  methods  and  base  of  opera- 
tions are  constantly  changing ;  who  shift  from  name  to  name  and  city  to  city,  for  the  ex- 
press purpose  of  avoiding  too  close  scrutiny;  who  are  often  hard  to  locate  for  the  deeds 
of  the  present  and  harder  to  convict  for  the  deeds  of  the  past. 

In  New  York,  recently,  a  dozen  different  names  were  successively  used  by  one  con- 
cern, a  change  being  made  immediately  on  the  discovery  that  it  was  attracting  attention  — 
made  for  the  express  purpose  of  escaping  the  detrimental  effect  of  a  fraud  order.  This 
plan  would  obviously  be  much  more  successful  if  the  restriction  came  from  the  slowly 
moving  courts. 


THE   DEPARTMENTS  401 


THE   DEPARTMENT   OF  AGRICULTURE 

[The  United  States  Department  of  Agriculture  carries  on  extensive  services 
for  the  purpose  of  investigating  the  conditions  of  agriculture,  of  improving 
methods  of  introducing  new  plants  and  animals.  The  developmental  work 
of  this  department  is  illustrated  by  the  following  selections.] 

FROM  PRESIDENT  ROOSEVELT'S  MESSAGE,  DECEMBER  6,  1904 

Agriculture.  The  Department  of  Agriculture  has  grown  into  an  edu- 
cational institution  with  a  faculty  of  two  thousand  specialists  making 
research  into  all  the  sciences  of  production.  The  Congress  appropriates, 
directly  and  indirectly,  six  millions  of  dollars  annually  to  carry  on  this 
work.  It  reaches  every  State  and  Territory  in  the  Union  and  the  islands 
of  the  sea  lately  come  under  our  flag.  Cooperation  is  had  with  the  State 
experiment  stations,  and  with  many  other  institutions  and  individuals. 
The  world  is  carefully  searched  for  new  varieties  of  grains,  fruits,  grasses, 
vegetables,  trees,  and  shrubs,  suitable  to  various  localities  in  our  country  • 
and  marked  benefit  to  our  producers  has  resulted. 

The  activities  of  our  age  in  lines  of  research  have  reached  the  tillers 
of  the  soil  and  inspired  them  with  ambition  to  know  more  of  the  principles 
that  govern  the  forces  of  nature  with  which  they  have  to  deal.  Nearly 
half  of  the  people  of  this  country  devote  their  energies  to  growing  things 
from  the  soil.  Until  a  recent  date  little  has  been  done  to  prepare  these 
millions  for  their  life  work.  In  most  lines  of  human  activity  college- 
trained  men  are  the  leaders.  The  farmer  had  no  opportunity  for  special 
training  until  the  Congress  made  provision  for  it  forty  years  ago.  During 
these  years  progress  has  been  made  and  teachers  have  been  prepared. 
Over  five  thousand  students  are  in  attendance  at  our  State  agricultural 
colleges.  The  Federal  Government  expends  ten  millions  of  dollars 
annually  toward  this  education  and  for  research  in  Washington  and  in 
the  several  States  and  Territories.  The  Department  of  Agriculture  has 
given  facilities  for  post-graduate  work  to  five  hundred  young  men  during 
the  last  seven  years,  preparing  them  for  advanced  lines  of  work  in  the 
Department  and  in  the  State  institutions. 

The  facts  concerning  meteorology  and  its  relations  to  plant  and  animal 
life  are  being  systematically  inquired  into.  Temperature  and  moisture 
are  controlling  factors  in  all  agricultural  operations.  The  seasons  of 
the  cyclones  of  the  Caribbean  Sea  and  their  paths  are  being  forecasted 
with  increasing  accuracy.  The  cold  winds  that  come  from  the  north 
are  anticipated  and  their  times  and  intensity  told  to  farmers,  gardeners, 
and  fruiterers  in  all  southern  localities. 

We  sell  two  hundred  and  fifty  million  dollars'  worth  of  animals  and 
animal  products  to  foreign  countries  every  year,  in  addition  to  supplying 
our  own  people  more  cheaply  and  abundantly  than  any  other  nation  is 

26 


402  AMERICAN   FEDERAL   GOVERNMENT 

able  to  provide  for  its  people.  Successful  manufacturing  depends  pri- 
marily on  cheap  food,  which  accounts  to  a  considerable  extent  for  our 
growth  in  this  direction.  The  Department  of  Agriculture,  by  careful 
inspection  of  meats,  guards  the  health  of  our  people  and  gives  clean  bills 
of  health  to  deserving  exports ;  it  is  prepared  to  deal  promptly  with  im- 
ported diseases  of  animals,  and  maintain  the  excellence  of  our  flocks  and 
herds  in  this  respect.  There  should  be  an  annual  census  of  the  live  stock 
of  the  Nation. 

We  sell  abroad  about  six  hundred  million  dollars'  worth  of  plants 
and  their  products  every  year.  Strenuous  efforts  are  being  made  to 
import  from  foreign  countries  such  grains  as  are  suitable  to  our  varying 
localities.  Seven  years  ago  we  bought  three-fourths  of  our  rice;  by 
helping  the  rice  growers  on  the  Gulf  coast  to  secure  seeds  from  the 
Orient  suited  to  their  conditions,  and  by  giving  them  adequate  protec- 
tion, they  now  supply  home  demand  and  export  to  the  islands. of  the 
Caribbean  Sea  and  to  other  rice-growing  countries.  Wheat  and  other 
grains  have  been  imported  from  light-rainfall  countries  to  our  lands  in 
the  West  and  Southwest  that  have  not  grown  crops  because  of  light 
precipitation,  resulting  in  an  extensile  addition  to  our  cropping  area 
and  our  home-making  territory  that  can  not  be  irrigated.  Ten  million 
bushels  of  first-class  macaroni  wheat  were  grown  from  these  experi- 
mental importations  last  year.  Fruits  suitable  to  our  soils  and  climates 
are  being  imported  from  all  the  countries  of  the  Old  World  —  the  fig 
from  Turkey,  the  almond  from  Spain,  the  date  from  Algeria,  the  mango 
from  India.  We  are  helping  our  fruit  growers  to  get  their  crops  into 
European  markets  by  studying  methods  of  preservation  through  refrig- 
eration, packing,  and  handling,  which  have  been  quite  successful.  We 
are  helping  our  hop  growers  by  importing  varieties  that  ripen  earlier  and 
later  than  the  kinds  they  have  been  raising,  thereby  lengthening  the  har- 
vesting season.  The  cotton  crop  of  the  country  is  threatened  with  root 
rot,  the  bollworm,  and  the  boll  weevil.  Our  pathologists  will  find  immune 
varieties  that  will  resist  the  root  disease,  and  the  bollworm  can  be  dealt 
with,  but  the  boll  weevil  is  a  serious  menace  to  the  cotton  crop.  It  is  a 
Central  American  insect  that  has  become  acclimated  in  Texas  and  has 
done  great  damage.  A  scientist  of  the  Department  of  Agriculture  has 
found  the  weevil  at  home  in  Guatemala  being  kept  in  check  by  an  ant, 
which  has  been  brought  to  our  cotton  fields  for  observation.  It  is  hoped 
that  it  may  serve  a  good  purpose. 

The  soils  of  the  country  are  getting  attention  from  the  farmer's  stand- 
point, and  interesting  results  are  following.  We  have  duplicates  of  the 
soils  that  grow  the  wrapper  tobacco  in  Sumatra  and  the  filler  tobacco  in 
Cuba.  It  will  be  only  a  question  of  time  when  the  large  amounts  paid 
to  these  countries  will  be  paid  to  our  own  people.  The  reclamation  of 
alkali  lands  is  progressing,  to  give  object  lessons  to  our  people  in  methods 
by  which  worthless  lands  may  be  made  productive. 


THE   DEPARTMENTS  403 

The  insect  friends  and  enemies  of  the  farmer  are  getting  attention. 
The  enemy  of  the  San  Jose  scale  was  found  near  the  Great  Wall  of  China, 
and  is  now  cleaning  up  all  our  orchards.  The  fig-fertilizing  insect  im- 
ported from  Turkey  has  helped  to  establish  an  industry  in  California 
that  amounts  to  from  fifty  to  one  hundred  tons  of  dried  figs  annually, 
and  is  extending  over  the  Pacific  coast.  A  parasitic  fly  from  South  Africa 
is  keeping  in  subjection  the  black  scale,  the  worst  pest  of  the  orange  and 
lemon  industry  in  California. 

Careful  preliminary  work  is  being  done  towards  producing  our  own 
silk.  The  mulberry  is  being  distributed  in  large  numbers,  eggs  are  being 
imported  and  distributed,  improved  reels  were  imported  from  Europe 
last  year,  and  two  expert  reelers  were  brought  to  Washington  to  reel  the 
crop  of  cocoons  and  teach  the  art  to  our  own  people. 

The  crop-reporting  system  of  the  Department  of  Agriculture  is  being 
brought  closer  to  accuracy  every  year.  It  has  two  hundred  and  fifty 
thousand  reporters  selected  from  people  in  eight  vocations  in  life.  It 
has  arrangements  with  most  European  countries  for  interchange  of  esti- 
mates, so  that  our  people  may  know  as  nearly  as  possible  with  what  they 
must  compete.  » 

Irrigation.  During  the  two  and  a  half  years  that  have  elapsed  since 
the  passage  of  the  reclamation  act  rapid  progress  has  been  made  in  the 
surveys  and  examinations  of  the  opportunities  for  reclamation  in  the 
thirteen  States  and  three  Territories  of  the  arid  West.  Construction  has 
already  been  begun  on  the  largest  and  most  important  of  the  irrigation 
works,  and  plans  are  being  completed  for  works  which  will  utilize  the 
funds  now  available.  The  operations  are  being  carried  on  by  the  Recla- 
mation Service,  a  corps  of  engineers  selected  through  competitive  civil- 
service  examinations.  This  corps  includes  experienced  consulting  and 
constructing  engineers  as  well  as  various  experts  in  mechanical  and  legal 
matters,  and  is  composed  largely  of  men  who  have  spent  most  of  their 
lives  in  practical  affairs  connected  with  irrigation.  The  larger  problems 
have  been  solved  and  it  now  remains  to  execute  with  care,  economy, 
and  thoroughness  the  work  which  has  been  laid  out.  All  important  details 
are  being  carefully  considered  by  boards  of  consulting  engineers,  selected 
for  their  thorough  knowledge  and  practical  experience.  Each  project 
is  taken  up  on  the  ground  by  competent  men  and  viewed  from  the  stand- 
point of  the  creation  of  prosperous  homes,  and  of  promptly  refunding 
to  the  Treasury  the  cost  of  construction.  The  reclamation  act  has  been 
found  to  be  remarkably  complete  and  effective,  and  so  broad  in  its  pro- 
visions that  a  wide  range  of  undertakings  has  been  possible  under  it. 
At  the  same  time,  economy  is  guaranteed  by  the  fact  that  the  funds  must 
ultimately  be  returned  to  be  used  over  again. 

Forests.  It  is  the  cardinal  principle  of  the  forest-reserve  policy  of  this 
Administration  that  the  reserves  are  for  use.  Whatever  interferes  with 
the  use  of  their  resources  is  to  be  avoided  by  every  possible  means. 


404  AMERICAN   FEDERAL   GOVERNMENT 

But  these  resources  must  be  used  in  such  a  way  as  to  make  them 
permanent. 

The  forest  policy  of  the  Government  is  just  now  a  subject  of  vivid 
public  interest  throughout  the  West  and  to  the  people  of  the  United 
States  in  general.  The  forest  reserves  themselves  are  of  extreme  value 
to  the  present  as  well  as  to  the  future  welfare  of  all  the  western  public- 
land  States.  They  powerfully  affect  the  use  and  disposal  of  the  public 
lands.  They  are  of  special  importance  because  they  preserve  the  water 
supply  and  the  supply  of  timber  for  domestic  purposes,  and  so  promote 
settlement  under  the  reclamation  act.  Indeed,  they  are  essential  to  the 
welfare  of  every  one  of  the  great  interests  of  the  West. 

Forest  reserves  are  created  for  two  principal  purposes.  The  first  is 
to  preserve  the  water  supply.  This  is  their  most  important  use.  The 
principal  users  of  the  water  thus  preserved  are  irrigation  ranchers  and 
settlers,  cities  and  towns  to  whom  their  municipal  water  supplies  are  of 
the  very  first  importance,  users  and  furnishers  of  water  power,  and  the 
users  of  water  for  domestic,  manufacturing,  mining,  and  other  purposes. 
All  these  are  directly  dependent  upon  the  forest  reserves. 

The  second  reason  for  which  forest* reserves  are  created  is  to  preserve 
the  timber  supply  for  various  classes  of  wood  users.  Among  the  more 
important  of  these  are  settlers  under  the  reclamation  act  and  other  acts, 
for  whom  a  cheap  and  accessible  supply  of  timber  for  domestic  uses  is 
absolutely  necessary ;  miners  and  prospectors,  who  are  in  serious  danger 
of  losing  their  timber  supply  by  fire  or  through  export  by  lumber  com- 
panies when  timber  lands  adjacent  to  their  mines  pass  into  private  own- 
ership ;  lumbermen,  transportation  companies,  builders,  and  commercial 
interests  in  general. 

Although  the  wisdom  of  creating  forest  reserves  is  nearly  everywhere 
heartily  recognized,  yet  in  a  few  localities  there  has  been  misunderstand- 
ing and  complaint.  The  following  statement  is  therefore  desirable : 

The  forest-reserve  policy  can  be  successful  only  when  it  has  the  full 
support  of  the  people  of  the  West.  It  can  not  safely,  and  should  not  in 
any  case,  be  imposed  upon  them  against  their  will.  But  neither  can  we 
accept  the  views  of  those  whose  only  interest  in  the  forest  is  temporary ; 
who  are  anxious  to  reap  what  they  have  not  sown  and  then  move  away, 
leaving  desolation  behind  them.  On  the  contrary,  it  is  everywhere  and 
always  the  interest  of  the  permanent  settler  and  the  permanent  business 
man,  the  man  with  a  stake  in  the  country,  which  must  be  considered 
and  which  must  decide. 

The  making  of  forest  reserves  within  railroad  and  wagon-road  land- 
grant  limits  will  hereafter,  as  for  the  past  three  years,  be  so  managed  as 
to  prevent  the  issue,  under  the  act  of  June  4,  1897,  of  base  for  exchange 
or  lieu  selection  (usually  called  scrip).  In  all  cases  where  forest  reserves 
within  areas  covered  by  land  grants  appear  to  be  essential  to  the  prosperity 
of  settlers,  miners,  or  others,  the  Government  lands  within  such  proposed 


THE   DEPARTMENTS  405 

forest  reserves  will,  as  in  the  recent  past,  be  withdrawn  from  sale  or 
entry  pending  the  completion  of  such  negotiations  with  the  owners  of 
the  land  grants  as  will  prevent  the  creation  of  so-called  scrip. 

It  was  formerly  the  custom  to  make  forest  reserves  without  first  getting 
definite  and  detailed  information  as  to  the  character  of  land  and  timber 
within  their  boundaries.  This  method  of  action  often  resulted  in  badly 
chosen  boundaries  and  consequent  injustice  to  settlers  and  others.  There- 
fore this  Administration  adopted  the  present  method  of  first  withdrawing 
the  land  from  disposal,  followed  by  careful  examination  on  the  ground 
and  the  preparation  of  detailed  maps  and  descriptions,  before  any  forest 
reserve  is  created. 

I  have  repeatedly  called  attention  to  the  confusion  which  exists  in 
Government  forest  matters  because  the  work  is  scattered  among  three 
independent  organizations.  The  United  States  is  the  only  one  of  the 
great  nations  in  which  the  forest  work  of  the  Government  is  not  con- 
centrated under  one  department,  in  consonance  with  the  plainest  dictates 
of  good  administration  and  common  sense.  The  present  arrangement 
is  bad  from  every  point  of  view.  Merely  to  mention  it  is  to  prove  that 
it  should  be  terminated  at  onc».  As  I  have  repeatedly  recommended, 
all  the  forest  work  of  the  Government  should  be  concentrated  in  the 
Department  of  Agriculture,  where  the  larger  part  of  that  work  is  already 
done,  where  practically  all  of  the  trained  foresters  of  the  Government 
are  employed,  where  chiefly  in  Washington  there  is  comprehensive  first- 
hand knowledge  of  the  problems  of  the  reserves  acquired  on  the  ground, 
where  all  problems  relating  to  growth  from  the  soil  are  already  gathered, 
and  where  all  the  sciences  auxiliary  to  forestry  are  at  handifor  prompt 
and  effective  cooperation.  These  reasons  are  decisive  in  themselves, 
but  it  should  be  added  that  the  great  organizations  of  citizens  whose 
interests  are  affected  by  the  forest  reserves,  such  as  the  National  Live 
Stock  Association,  the  National  Wool  Growers'  Association,  the  Ameri- 
can Mining  Congress,  the  National  Irrigation  Congress,  and  the  Na- 
tional Board  of  Trade,  have  uniformly,  emphatically,  and  most  of  them 
repeatedly,  expressed  themselves  in  favor  of  placing  all  Government 
forest  work  in  the  Department  of  Agriculture  because  of  the  peculiar 
adaptation  of  that  Department  for  it.  It  is  true,  also,  that  the  forest 
services  of  nearly  all  the  great  nations  of  the  world  are  under  the  respec- 
tive departments  of  agriculture,  while  in  but  two  of  the  smaller  nations 
and  in  one  colony  are  they  under  the  department  of  the  interior.  This 
is  the  result  of  long  and  varied  experience  and  it  agrees  fully  with  the 
requirements  of  good  administration  in  our  own  case. 

The  creation  of  a  forest  service  in  the  Department  of  Agriculture  will 
have  for  its  important  results: 

First.  A  better  handling  of  all  forest  work,  because  it  will  be  under 
a  single  head,  and  because  the  vast  and  indispensable  experience  of  the 
Department  in  all  matters  pertaining  to  the  forest  reserves,  to  forestry 


406  AMERICAN   FEDERAL   GOVERNMENT 

in  general,  and  to  other  forms  of  production  from  the  soil,  will  be  easily 
and  rapidly  accessible. 

Second.  The  reserves  themselves,  being  handled  from  the  point  of 
view  of  the  man  in  the  field,  instead  of  the  man  in  the  office,  will  be  more 
easily  and  more  widely  useful  to  the  people  of  the  West  than  has  been 
the  case  hitherto. 

Third.  Within  a  comparatively  short  time  the  reserves  will  become 
self-supporting.  This  is  important,  because  continually  and  rapidly 
increasing  appropriations  will  be  necessary  for  the  proper  care  of  this 
exceedingly  important  interest  of  the  Nation,  and  they  can  and  should 
be  offset  by  returns  from  the  National  forests.  Under  similar  circum- 
stances the  forest  possessions  of  other  great  nations  form  an  important 
source  of  revenue  to  their  governments. 

Every  administrative  officer  concerned  is  convinced  of  the  necessity 
for  the  proposed  consolidation  of  forest  work  in  the  Department  of 
Agriculture,  and  I  myself  have  urged  it  more  than  once  in  former  mes- 
sages. Again  I  commend  it  to  the  early  and  favorable  consideration 
of  the  Congress.  The  interests  of  the  Nation  at  large  and  of  the  West 
in  particular  have  suffered  greatly  because  of  the  delay. 


SPEECH  OF  HON.   FRANKLIN  E.  BROOKS  ON  THE 
AGRICULTURAL  APPROPRIATION  BILL1 

MR.  BROOKS  of  Colorado  said: 

Mr.  Chairman :  I  listened  yesterday  with  considerable  interest  to  the 
fervid  and  sometimes  rather  hysterical  eloquence  of  the  gentlemen  who 
were  rushing  in  rapid  procession  to  express  allegiance  to  the  interests 
of  the  farmers  and  the  men  who  toil ;  and,  incidentally,  to  express  their 
appreciation  of  .the  work  of  this  Department.  Now,  gentlemen,  I  realize 
that  the  period  of  nominating  conventions  is  at  hand,  and  therefore  I 
trust  that  all  the  remarks  of  all  the  gentlemen  may  be  as  seed  sown  in 
good  ground ;  that  they  may  bring  forth  fruit,  and  that  the  result  may 
abundantly  justify  the  expectation  at  the  time  of  harvest. 

I  yield  to  no  man  in  my  interest  in  the  agricultural  industries  of  this 
country,  in  the  great  forces  that  are  making  for  national  prosperity. 
These  gentlemen  do  not  say  anything  on  behalf  of  those  interests  in 
general,  that  I  would  not  say  if  I  could.  But  I  am  bound  to  take  issue 
with  them  on  some  of  the  conclusions  that  they  draw.  I  recognize  as 
thoroughly  as  they  do  that  agriculture  is  the  great  primary  source  of 
productive  wealth.  I  recognize  more,  that  its  prosperity  is  the  necessary 
and  essential  condition  of  national  prosperity,  advancement,  and  growth. 
I  recall  that  the  classic  and  Chinese  mythologies  gave  to  agriculture  a 
divine  origin,  and  that,  in  order  further  to  dignify  the  subject,  they 

1  Congr.  Record,  May  i,  1906. 


THE   DEPARTMENTS  407 

brought  from  the  heavens  a  god  to  teach  its  mysteries  to  mankind.  I 
am  inclined  to  think,  however,  that  our  latter-day,  twentieth  century, 
practical  point  of  view  gives  even  more  distinct  recognition,  when  it 
devotes  to  the  study  of  agricultural  problems,  as  it  does,  this  body  of 
trained  scientists  who  for  the  last  twelve  years  have  been  shedding  so 
much  luster  on  the  Department  of  Agriculture  and  giving  so  much  of 
reputation  and  distinction  to  it. 

I  believe  in  the  Department  of  Agriculture.  I  believe  thoroughly  in 
its  work.  I  believe  in  its  great  Secretary,  who  started  it  on  its  career  of 
advancement  and  growth  and  who  for  nearly  ten  years  has  so  ably  directed 
its  progress.  I  believe  in  the  men  who  are  under  Secretary  Wilson,  the 
able  heads  of  departments,  and  in  the  faithful  and  energetic  men  who 
are  working  under  them.  The  work  fascinates  me.  It  appeals  to  me. 
It  appeals  to  my  imagination.  It  appeals  to  my  hopes  of  the  future  of 
this  country.  It  appeals  to  my  sense  of  duty  to  the  people  and  the  con- 
stituents whom  I  have  the  honor  to  represent.  I  am  not  afraid  of  the 
man  with  the  hoe,  and  I  have  no  fears  of  the  militant  farmer.  I  am  not 
alarmed  at  the  size  of  these  appropriations.  They  seem  very  small, 
comparatively,  and  entirely  reasonable.  They  seem  abundantly  justified 
by  the  work  the  Department  has  been  doing. 

Without  going  too  much  into  detail,  I  should  like  to  call  the  attention 
of  the  committee  briefly  to  a  few  of  the  results  of  this  work  before  saying 
anything  on  this  question  of  free  garden  seeds  which  we  are  discussing. 

The  American  farmer  is  by  no  means  a  babe  in  swaddling  clothes. 
Given  a  fair  start  and  an  open  field  he  can  take  care  of  himself ;  but  his 
work  can  be  vastly  facilitated,  his  efficiency  tremendously  increased,  and 
the  highest  interests  of  every  citizen  of  the  country  promoted  by  the  guid- 
ance, suggestion,  and  helpful  advice  of  such  bureaus  as  have  been  estab- 
lished in  the  last  twelve  years. 

It  was  Mark  Twain  who  said  that  the  cauliflower  was  a  cabbage  with 
a  college  education,  and  it  has  been  the  function  of  the  national  Depart- 
ment of  Agriculture  to  give  college  educations  not  only  to  the  cabbage, 
but  to  the  orange  and  the  sugar  beet,  the  wheat  of  Minnesota  and  the 
tobacco  of  Connecticut,  to  the  cotton  of  Texas  and  the  apple  of  New 
York  and  Michigan,  to  the  horses  of  the  mountains  and  the  dairy  cows 
of  Iowa.  True,  they  say  that  the  Department  reeks  with  paternalism, 
but  there  is  paternalism  and  paternalism,  and  there  is  nothing  in  the 
helpful  work  of  these  bureaus  which  would  disturb  the  shades  even  of 
Jefferson. 

I  wish  it  had  been  in  the  power  of  every  Member  of  this  House  to 
listen  to  the  statements  made  before  the  committee  by  the  heads  of  the 
various  executive  branches  of  the  Department.  Failing  in  that,  I  wish 
that  each  might  find  time  to  read  the  reports  of  these  hearings.  They  are 
a  liberal  education  in  applied  science  in  the  field  of  agriculture,  and  if 
anyone  has  had  the  bad  taste  to  recall  the  earlier  designation  of  the  De- 


408  AMERICAN   FEDERAL   GOVERNMENT 

partment  in  semi-derision  as  the  "cow  bureau,"  I  think  he  will  be  heartily 
ashamed  of  it  before  he  gets  through  with  his  studies.  The  work  is  not 
only  theoretical,  and  it  is  not  purely  educational,  although  it  is,  and 
should  be  in  the  main,  experimental  and  suggestive.  It  is  distinctly 
practical  and  is  more  than  justified  by  direct  returns. 

There  is  not  one  field  of  governmental  activity  where  a  dollar  spent 
brings  a  tenth  of  the  return  in  actual  good  to  the  people  that  does  the 
little  expenditure  which  we  give,  more  or  less  grudgingly,  to  this  Depart- 
ment. It  covers  a  wide  field  in  national  life,  and  in  every  line  of  its 
activities  it  demonstrates  every  year  in  a  cold  matter  of  dollars  and  cents 
its  increasing  financial  importance. 

The  Weather  Bureau  saves  in  a  month  in  the  spring  floods  many 
times  its  entire  cost  since  its  institution  in  the  saving  of  property  and  life, 
and  its  researches  in  the  field  of  meteorological  science  are  both  wonder- 
ful and  fascinating. 

If  the  Bureau  of  Animal  Industry  had  done  nothing  else  in  its  whole 
career  but  to  save  the  domestic  animals  of  the  country  from  the  scourge 
of  the  hoof-and-mouth  disease,  it  would  have  abundantly  justified  every 
dollar  that  it  has  cost,  but  that  is  only  one  small  portion  of  its  work.  Its 
daily  routine  is  made  up  of  the  protection  of  the  people's  food  supply  — 
increasing  its  volume  and  decreasing  its  cost ;  protecting  the  farmer  and 
stock  grower  from  diseases  and  adding  enormously  to  our  national 
wealth.  It  has  done  and  is  doing  in  its  meat-inspection  work  perhaps 
more  than  any  one  single  agency  to  develop  and  hold  a  foreign  market 
for  our  agricultural  productions,  and  our  meats  to-day  find  an  entrance 
into  Germany,  France,  Belgium,  and  other  European  centers  solely 
because  they  are  viseed  by  this  Bureau. 

The  Department  has  recently  taken  over  the  immense  forests  on  our 
public  lands,  and  forested  areas  to-day  aggregating  more  than  100,000,000 
acres  are  being  cared  for,  preserved,  and  developed  by  the  Department 
of  Agriculture.  While  there  is  a  possibility  for  difference  of  opinion  as 
to  the  wisdom  or  some  phases  of  this  work,  its  importance  and  its  pos- 
sibilities of  good  in  the  preservation  of  the  forest  and  the  conservation  of 
the  water  supply,  in  the  development  of  the  arid  regions,  and  the  making 
possible  of  steady  and  successful  irrigation  are  absolutely  beyond  com- 
putation, and  the  tact  and  skill  with  which  this  work  has  been  done  under 
its  present  management  has  gone  far  toward  removing  any  possible 
ground  for  complaint. 

It  is  useless  to  enumerate  in  detail  the  individual  bureaus  with  their 
almost  spectacular  work,  but  while  we  are  talking  of  dollars  and  cents 
let  us  bear  in  mind  that  the  experiment  stations  in  all  the  States  and  Ter- 
ritories have  cost  the  Government  until  now  only  $790,000  a  year,  and 
the  additional  work  in  connection  with  the  stations  in  Washington  in- 
creases these  figures  by  only  $200,000.  That  is  a  large  sum  of  money, 
but  a  Minnesota  experiment  station  alone  has  added  more  than  this  sum 


THE   DEPARTMENTS  409 

per  annum  to  the  value  of  the  wheat  crop  of  the  country  in  improving 
the  type  and  character  of  the  wheat  grown.  Figures  are  dry  and  mean- 
ingless things  in  the  abstract,  but  in  the  concrete  they  tell  their  story. 

The  addition  of  a  single  kernel  of  wheat  per  head  means  an  addition 
of  more  than  $5,000,000  per  annum  to  our  national  wealth,  and  the 
methods  of  seed  selection  introduced  and  practiced  by  these  experiment 
stations  have  far  more  than  equaled  this  increase. 

We  are  spending  about  $30,000,000  in  building  vast  reservoirs,  canals, 
monumental  dams,  and  structures,  which  we  hope  shall  last  to  the  end 
of  time,  to  conserve  and  preserve  the  waters  in  the  semiarid  regions.  We 
are  doing  this  through  the  agency  of  trained  and  technical  engineers 
whose  work  is  exciting  the  admiration  of  every  beholder.  A  hundred 
thousand  dollars  hardly  pays  for  the  reconnoissance  for  one  of  the 
gigantic  projects  undertaken  by  the  national  Reclamation  Service,  but 
the  Reclamation  Bureau  spends  not  one  cent  of  its  millions  in  solving, 
or  attempting  to  solve,  any  of  the  myriad  questions  relating  to  the  ap- 
plication of  water  to  the  soil,  relating  to  irrigation  as  an  art,  relating  to 
the  economic  use  of  the  water  it  has  cost  these  millions  to  save. 

It  remains  for  one  of  the  bureaus  of  the  Office  of  Experiment  Stations, 
with  a  sum  of  only  $102,000  altogether,  to  work  along  these  lines  and  to 
achieve  results  which  the  western  farmer  regards  as  the  most  important 
of  anything  connected  with  the  work  of  reclamation.  There  is  no  part 
of  the  work  of  the  Department  that  meets  with  readier  welcome  at  the 
hands  of  those  for  whom  it  is  done  than  does  this  work  of  the  Bureau  of 
Irrigation  and  Drainage  Investigation,  and  yet  with  this  $102,000  that 
has  been  given  to  this  Bureau  there  is  carried  on  not  only  the  irrigation 
work,  but  drainage  development  and  experimentation  in  twenty  States 
and  the  reclamation  of  millions  of  acres  of  land  rendered  useless  by  alkali 
and  similar  mineral  elements. 

I  am  very  glad  that  the  bill  before  us  carries  above  $27,000  increase 
for  this  work. 

With  a  total  expenditure  of  less  than  $5,000  the  Department  last  year 
located  and  detected  the  poison  that,  under  the  name  of  "loco,"  has  cost 
the  stockmen  of  this  country,  speaking  conservatively,  $10,000,000,  and 
this  was  done  although  scientist  after  scientist  and  expert  after  expert 
had  declared  the  poison  a  myth. 

No  one  of  all  these  phases  of  this  work  is  more  beneficial  than  is  that 
of  the  particular  Bureau  which  we  have  under  contemplation  in  this  item 
—  the  Bureau  of  Plant  Industry.  None  is  more  ably  officered  and 
directed.  Its  costs,  according  to  the  figures  of  this  bill,  about  $575,000. 
That  is  the  equivalent  in  cost  of  a  thousand  rounds  of  ammunition  for 
a  i2-inch  gun,  and  the  results  of  the  work  of  the  Bureau  of  Plant  Industry 
simply  can  not  be  computed.  These  results  are  not  only  a  benefit  to  the 
rural  population,  not  only  to  the  men  for  whom  we  plead  so  earnestly, 
but  they  are  a  benefit  to  the  whole  people ;  they  increase  our  food  supply ; 


410  AMERICAN   FEDERAL   GOVERNMENT 

they  promote  our  commerce;  they  help  our  people  in  every  particular. 
Because  they  are  so  far-reaching,  and  because  they  are  so  beneficent  and 
important,  I  protest  against  men  of  the  character  and  caliber  of  those 
who  are  at  the  head  of  this  Department  having  their  time  and  energies 
and  opportunities  frittered  away  in  sending  out  these  absurd  little  dona- 
tions of  ordinary  garden  seeds  to  the  farmer,  to  men  who  do  not  want 
them.  I  do  not  want  this  important  work  interfered  with.  I  do  not 
want  this  great  bureau  to  continue  under  our  direction  doing  something 
that  seems  to  me  ignoble  and  unworthy  —  unworthy  of  the  Congress, 
unworthy  the  Department  of  Agriculture,  and,  most  of  all,  unworthy  the 
American  farmer. 

I  do  not  think  the  committee  intended  to  take  anything  from  the  farmer. 
I  know  that  I  did  not.  I  do  not  believe  that  that  was  the  thought  at  all. 
What  we  wanted  to  do  was  to  substitute  something  that  was  of  value  for 
something  that  was  unimportant  and  inconsiderable;  something  that 
really  amounted  to  something,  that  would  accomplish  something,  and 
was  of  practical  utility. 

When  the  Department  was  first  organized,  Congress  very  aptly  and 
very  properly  made  a  part  of  its  duty  the  distribution  of  rare  and  valu- 
able seeds,  but  they  were  to  be  rare  and  valuable  seeds,  not  the  kinds 
that  had  been  known  for  three  centuries ;  not  the  variety  that  our  for- 
bears brought  with  them  to  Jamestown  and  Plymouth.  They  were  to 
be  rare  and  valuable  seeds ;  something  that  would  add  to  the  productive 
power  and  wealth  of  the  country  and  advance  the  interest  of  the  farming 
population. 

What  the  committee,  if  I  understand  it,  attempted  to  do  is  simply  this : 
they  attempted  to  confine  this  work  to  the  legitimate  field  of  the  dis- 
tribution of  rare  and  valuable  seeds.  There  was  no  thought,  I  am  sure, 
of  dealing  either  illiberally  or  parsimoniously  with  it.  On  the  other 
hand,  they  believe  that  we  have  appropriated  sufficiently  so  that  that 
work  may  be  carried  on  with  success  according  to  its  legitimate  purpose. 

There  are  endless  instances  of  the  importance  of  the  distribution  if 
properly  directed.  The  seedless  orange  was  developed  and  introduced 
by  the  Bureau  of  Plant  Industry,  and  afterwards  distributed  through 
this  very  appropriation.  This  one  fruit  has  been  worth  more  to  the  people 
of  this  country  than  all  the  radishes,  pumpkins,  lettuce,  and  beans  that 
have  been  sent  out  through  the  Department  of  Agriculture  since  this  dis- 
tribution began.  The  statisticians  tell  us  that  the  California  crop  of 
seedless  orange  alone  is  worth  from  $7,000,000  to  $8,000,000  annually. 

In  the  same  way  and  through  the  same  distribution  the  Government 
has  been  sending  out  macaroni  wheat.  The  Bureau  of  Plant  Industry 
introduced  it  from  Russia  and  Asia  and  distributed  it  freely  to  our  farm- 
ers, and  to-day  it  is  adding  to  the  income-bearing  possibilities  of  the 
country  infinitely  more  than  all  of  these  ordinary  seeds  that  they  are 
sending  out  for  us  under  our  franks.  This  is  something  the  farmer  can 


THE   DEPARTMENTS  411 

not  get  at  the  corner  grocery,  and  the  cash  value  of  the  work  is  to  be 
figured  in  millions  of  dollars.  Last  year  it  is  estimated  that  we  produced 
in  this  country  from  $10,000,000,  to  $15,000,000  in  this  product  alone, 
and  the  beauty  of  it  is  that  it  fills  a  new  field  and  positively  adds  that 
amount  to  our  productive  wealth. 

Mr.  WADSWORTH.  And  they  have  done  that  within  the  last  three 
years. 

Mr.  BROOKS  of  Colorado.  And  the  chairman  calls  my  attention  to  the 
fact  that  this  work  has  all  been  done  within  the  last  three  years.  The 
same  thing  is  true  of  the  Kaffir  corn,  emmer,  and  brome.  Those  are 
things  that  are  of  real  value,  and  they  are  sent  out  under  the  appropria- 
tion for  the  Congressional  free-seed  distribution,  but  they  are  not  the 
ordinary  garden  seeds  that  you  can  buy  anywhere  for  i  or  2  cents  a 
package. 

I  was  much  interested  yesterday  in  the  remarks  of  the  gentleman  from 
South  Carolina  [Mr.  Ellerbe].  They  seemed  to  be  very  apt,  very  sound, 
and  very  sensible.  What  he  said  about  the  wilt-resisting  cotton  is  all 
true.  It  has  added  enormously  to  the  receipts  of  the  cotton  growing 
States  and  the  cotton  growing  section  has  not  yet  begun  to  reap  the  full 
returns,  but  I  did  not  notice  any  plea  for  free  beans  in  the  gentleman's 
remarks  or  any  argument  for  rhubarb  or  radishes  or  anything  of  that 
sort.  All  that  the  gentleman  said  was  the  strongest  possible  argument 
for  the  work  of  the  Department  in  sending  out  rare  seeds  and  against 
garden  seeds. 

The  wilt-resisting  cotton  was  a  rare  and  valuable  thing  that  was 
developed  by  the  Bureau  and  sent  out  under  this  form  of  seed  distribu- 
tion. Now,  the  committee  has  attempted  to  still  provide  for  the  rare 
and  valuable  plants  and  seeds.  There  is  no  disposition  to  leave  out  the 
wilt-resisting  cotton,  there  is  no  disposition  to  leave  out  the  further  pro- 
duction of  the  seedless  orange,  or  the  Kaffir  corn,  or  the  macaroni  wheat. 
There  will  be  an  amendment  offered  by  the  committee  that  will  make 
that  matter  thoroughly  clear,  and  will  secure  the  continuance  of  the  work 
without  any  restrictions.  What  the  committee  attempted  to  do  was  to 
leave  in  the  bill  all  the  appropriation  that  hitherto  had  been  devoted  to 
the  rare  and  valuable  seeds,  and  to  eliminate  and  leave  out  of  the  bill 
this  indefensible  donation  of  no  value  which  is,  in  many  cases,  regarded 
with  ridicule,  and  justly  so,  by  the  very  men  to  whom  it  is  sent. 

There  is  an  ample  field  for  work  with  rare  seeds  and  plants.  There 
are  hundreds  of  localities  all  over  the  world  where  we  still  can  get  just 
such  plants  as  those  which  that  Bureau  has  been  finding  for  us  in  the 
r  last  years.  The  scientists  from  the  Department  are  now  searching  in 
Asia,  in  Turkey,  in  India,  in  Africa,  in  northern  Russia,  and  in  Australia, 
and  from  those  sections  we  are  getting  things  that  our  farmers  can  use 
and  render  available  from  one  end  of  this  country  to  the  other.  It  is 
true  that  many  of  them  are  semi-tropical  and  will  interest  mainly  the 


412  AMERICAN   FEDERAL   GOVERNMENT 

South,  like  the  orange,  the  mango,  the  fig,  the  grape  fruit,  and  date,  but 
it  is  also  true  that  many  of  them  are  hardy  and  will  interest  the  North, 
like  the  hardier  kind  of  wheat,  and  the  hardy  crops  that  will  grow  clear 
to  the  Canada  line  and  in  altitudes  of  6,000  or  7,000  feet  —  grains  and 
fruits  from  Siberia  and  northern  Russia,  which  thrive  wonderfully  when 
brought  to  our  warmer  sections.  That  is  the  kind  of  work  I  plead  for 
and  have  interest  in. 

We  expend  something  like  $500,000  a  year  in  one  single  drug  — 
opium  —  and  we  import  that  from  foreign  countries,  and  our  total 
importation  of  foreign  drugs  and  medicinal  plants  amounts  to  more  than 
$5,000,000  annually. 

The  CHAIRMAN.    The  time  of  the  gentleman  has  expired. 

Mr.  WADSWORTH.  Mr.  Chairman,  I  ask  unanimous  consent  that  the 
gentleman  may  be  allowed  to  conclude  his  remarks. 

The  CHAIRMAN.  The  gentleman  from  New  York  asks  unanimous 
consent  that  the  gentleman  from  Colorado  may  be  permitted  to  conclude 
his  remarks.  Is  there  objection? 

Mr.  FINLEY.  Mr.  Chairman,  I  understand  that  the  gentleman  is  dis- 
cussing the  seed  proposition.  I  would  like  to  know  if  we  have  reached 
that  provision  in  the  bill. 

Mr.  WADSWORTH.    Oh,  yes;  we  have. 

Mr.  FINLEY.    Then  I  have  no  objection. 

The  CHAIRMAN.    The  Chair  hears  no  objection. 

Mr.  BROOKS  of  Colorado.  Mr.  Chairman,  I  think  I  shall  take  only  a 
few  minutes,  for  I  shall  very  briefly  conclude  with  one  or  two  things 
that  I  want  to  call  attention  to.  As  I  was  saying,  we  are  expending 
$500,000  a  year  for  a  single  drug.  That  drug  and  many  others  can  be 
grown  with  profit,  and  great  profit,  in  Maine,  in  New  Hampshire,  in 
Vermont,  and  in  the  Northern  States.  Crops  like  these  can  be  made  a 
kind  of  by-product  to  the  farmer  and  ought  to  be  introduced,  and  this 
Department  is  trying  to  do  it  through  this  Bureau.  Now,  the  committee 
proposes  to  extend  the  usefulness  of  the  Bureau  along  those  lines  and  to 
substitute  in  its  distribution  digitalis  and  stramonium  and  plants  like 
those  for  peas  and  beans  and  such  plants  as  you  can  get  anywhere.  Only 
last  week  there  was  a  very  apt  illustration  of  what  I  am  saying.  There 
is  one  concern  engaged  in  the  manufacture  of  celluloid  in  this  country 
that  pays  $500,000  a  year  for  camphor.  Camphor,  as  we  all  know,  is 
a  monopoly  of  the  Japanese  Government  in  the  island  of  Formosa. 
Probably  the  other  uses  of  camphor  in  this  country  amount  to  about 
$2,000,000  a  year. 

Last  year  down  in  Florida  one  of  the  experts  of  this  Department  in 
going  around  found  a  man  who  was  trimming  some  ornamental  camphor 
trees.  He  got  the  clippings  from  those  trees  and  experimented  with  them 
in  the  Bureau.  He  found  that  he  could  get  a  higher  content  of  camphor 
oil  and  a  better  quality  of  camphor  than  they  could  in  the  island  of 


THE   DEPARTMENTS  413 

Formosa,  where  they  cut  down  and  kill  the  tree.  He  further  found  that 
large  tracts  of  land  in  Florida  which  were  comparatively  valueless  for 
other  purposes  were  admirably  adapted  for  growing  these  trees.  He 
went  immediately  to  the  celluloid  people,  showed  them  the  result  of  his 
work,  and  explained  to  them  the  possibility  of  introducing  the  growth 
of  these  trees  into  this  country,  and  last  week  they  concluded  the  pur- 
chase of  lands  in  Florida  for  the  investment  of  $150,000  in  the  growing 
of  American  camphor.  How  does  that  work  compare  with  our  donations 
of  2-cent  packages  of  cabbage  and  rhubarb  and  rutabaga? 

We  pay  $500,000  a  year  to  Germany  and  France  for  our  beet-sugar 
seed.  The  Department  of  Agriculture  is  developing  a  beet-sugar  seed 
to-day  in  this  country  that  is  superior  in  saccharine  content,  in  hardness 
and  availability  to  anything  that  the  Germans  or  French  can  produce; 
and  I  prefer  to  see  my  Colorado  farmers  get  this  improved  sugar-beet 
seed  than  these  common  seeds  that  they  do  not  want,  and  I  know  my 
Michigan  and  Utah  and  Minnesota  friends  feel  the  same  way.  I  believe 
that  Department  can  assist  the  gentleman  from  Tennessee  [Mr.  Gaines] 
to  find  some  rare  seeds  of  this  sort,  that  his  people  will  think  just  as  much 
of  as  they  do  of  the  peas  and  beans  which  he  says  they  prize  so  highly, 
and  if  he  does,  he  will  accomplish  a  substantial  result  in  developing  new 
agricultural  possibilities  for  his  section. 

I  do  not  agree  with  the  gentleman  from  Maryland  [Mr.  Mudd],  and 
I  do  not  believe  that  he  got  at  the  real  point  of  this  situation  in  his  re- 
marks yesterday.  Shortly  after  I  was  first  elected  to  Congress  and  before 
I  knew  some  of  the  mysteries  of  the  work  of  a  Congressman  which  I 
have  since  learned,  I  was  awakened  in  the  dead  vast  and  middle  of  night 
by  a  telegram  from  a  very  enthusiastic  rural  constituent,  and  it  read  like 
this: 

Send  seeds  at  once;  no  Republican  seeds  in  this  county. 

I  complied  with  that  urgent  demand  as  soon  as  I  could,  and  the  returns 
at  the  succeeding  election,  in  the  Republican  crop,  were  amply  satis- 
factory and  highly  commendable  from  my  point  of  view.  My  enthusi- 
astic rural  friend  had  gotten  at  the  real  gist  of  this  question.  It  is  an 
attempt  to  secure  a  little,  petty,  unworthy,  ignoble  influence  for  our- 
selves as  Congressmen  in  a  way  that  we  ought  to  be  ashamed  of,  and  it 
is  a  way  that  I  hope  will  be  abandoned. 

The  American  farmer  is  not  a  babe  in  swaddling  clothes.  He  can  see 
through  this  little  gift  very  easily.  The  man  with  the  hoe  is  not  what 
he  was  even  when  Millet  painted  him  or  when  Markham  maligned  him 
into  fame.  In  America  he  is  not  only  a  tiller  of  the  soil;  he  is  a  me- 
chanic, manufacturer,  and  business  man,  and  in  these  later  days  he  is  a 
chemist,  physicist,  bacteriologist,  and  entomologist  as  well.  I  think  he 
understands  and  values  this  2-cent  contribution  at  its  real  worth. 


4i4  AMERICAN  FEDERAL   GOVERNMENT 

I  want  to  make  myself  entirely  clear,  and,  at  the  risk  of  repetition, 
let  me  repeat  that  I  believe  in  proper  and  legitimate  seed  distribution. 
It  is  only  the  kind  of  seeds  that  I  object  to.  I  do  not  and  can  not  believe 
that  the  sending  out  of  ordinary  common  garden  seeds  is  a  proper  or 
legitimate  distribution,  and  I  shall  oppose  it.  I  will,  however,  vote  any 
reasonable  sum  for  the  work  of  sending  out  new,  rare,  and  valuable  seeds 
and  plants,  and  believe  this  would  result  in  great  good  in  the  future,  as 
it  has  in  the  past. 

For  work  such  as  I  have  described  in  some  twenty  bureaus  we  provide 
this  year  $7,250,000.  It  reclaims  our  land;  it  renders  fertile  our  ex- 
hausted reaches ;  it  improves  our  crops ;  it  increases,  cheapens,  improves, 
and  diversifies  the  food  supplies  of  our  toiling  millions ;  it  protects  our 
forests,  our  flocks,  and  our  herds ;  it  increases  by  billions  of  dollars  an- 
nually our  foreign  and  domestic  commerce ;  it  furnishes  the  most  whole- 
some, safest,  and  most  elevating  form  of  employment  to  the  people;  it 
injures  no  one;  it  is  beneficent,  helpful,  and  unobtrusive.  Its  total 
cost  represents  an  expenditure  of  a  million  dollars  a  day  for  a  single 
week.  For  the  arts  of  war,  including  therein,  as  we  properly  should, 
our  pension  budget,  we  spent  this  year,  in  round  numbers,  a  million 
dollars  a  day  for  the  days  of  a  whole  year,  and  I  venture  to  say  that  no 
man  on  the  floor  of  this  House  will  begin  to  compare  the  usefulness, 
beneficence,  and  far-reaching  results  of  the  work  of  the  Department  of 
Agriculture  with  that  of  our  Army  and  Navy  combined. 

I  join  with  our  friends  of  the  Military  and  Naval  Committees  heartily, 
cheerfully,  and  enthusiastically  in  every  effort  that  they  make  to  protect 
this  country  at  home  and  abroad,  to  advance  its  prestige,  to  make  its 
name  and  its  flag  honored,  respected,  and  revered;  I  yield  to  no  one  in 
my  support  of  everything  which  makes  for  our  national  honor  and  ad- 
vantage; I  will  vote  battle  ships  as  long  as  there  is  a  real  need.  The 
scare  head  of  rampant  militarism  has  no  terrors  for  me,  but  in  the  name 
of  the  thirty  millions  of  farming  population  who  make  up  the  great  pro- 
ducing element  of  our  body  politic  I  protest  against  any  cheeseparing  or 
restrictive  economies  as  applied  to  the  work  of  this  Department.  We 
talk  about  the  stupendous  balance  of  trade  in  our  favor.  On  this  side 
of  the  Chamber  we  point  with  pride,  and  justly  point  with  pride,  to  an 
aggregate  balance  for  the  twelve  years  of  Republican  ascendance  amount- 
ing to  something  like  $4,000,000,000,  but  we  should  go  further  and  pay 
our  respects  and  distinguished  consideration  to  the  farmers  of  this 
country  who  have  not  only  made  that  balance  possible,  but  in  order  to 
do  so  have  wiped  out  an  adverse  balance  against  us  for  the  same  period 
of  over  $890,000,000. 

As  the  work  grows  it  is  necessary  that  comparatively  new  fields  from 
time  to  time  be  entered  upon,  and  this  bill  and  the  two  previous  bills 
have  carried  one  item  in  itself  somewhat  novel,  of  which  I  wish  to  speak 
very  briefly.  In  1904  we  appropriated  $25,000  for  experiments  in  animal 


THE   DEPARTMENTS  415 

feeding  and  breeding.  The  appropriation  was  continued  last  year,  and 
it  is  carried  in  the  bill  before  us.  Under  that  appropriation,  small  and 
meager  as  it  is,  the  Department  has  inaugurated  two  small  experiments 
in  the  developing  of  an  American  type  of  horse,  one  in  the  East  and  one 
in  the  West;  has  made  instructive  and  valuable  experiments  in  sheep 
breeding  in  cooperation  with  the  Iowa  station ;  has  already  done  a  great 
work  in  the  development  of  the  poultry  industry,  which,  although  tremen- 
dous in  its  returns,  has  never  received  the  attention  it  deserved ;  has  been 
carrying  on  a  series  of  most  valuable  and,  interesting  experiments  in 
calorimetric  tests  of  the  heat  and  flesh  producing  power  of  different  food 
elements  in  connection  with  the  Pennsylvania  experiment  station,  and 
in  several  places  in  the  South  has  started,  or  has  under  contemplation, 
similar  work  in  feeding  and  breeding. 

The  field  that  this  work  opens  upon  is  vast  and  important  and  has 
been  hitherto  almost  neglected  by  the  Government.  We  have  lagged 
far  behind  the  work  of  the  other  leading  powers.  We  spend  annually 
hundreds  of  thousands  of  dollars  in  importing  foreign  stock.  Our  horses, 
with  the  exception  of  two  strains  of  trotting  stock,  which  are  really  families 
rather  than  types,  are  Percheron,  Belgian,  Oldenburg,  and  Clydesdale; 
our  cattle  are  Holsteins,  Ayrshires,  Swiss,  Jerseys,  or  Herefords;  our 
sheep  are  Cotswolds,  Southdowns,  and  Merinos,  and  our  swine  are 
foreign  in  their  origin  and  names ;  only  two  breeds  of  chickens  proudly 
flaunt  an  American  name  and  are  the  result  of  American  breeding.  It 
is  high  time  that  the  genius  and  energy  of  the  American  breeder  should 
be  turned  to  the  growth  and  development  of  native  strains  and  American 
types.  We  can  learn  much  from  our  foreign  friends  on  this  subject.  We 
frequently  hear  how  one  or  another  phase  of  modern  progress  is  due  in 
some  direct  or  indirect  manner  to  the  Corsican  first  emperor  of  the 
French. 

It  is  interesting  to  know  that  the  great  Hungarian  breeding  stable  at 
Lipitza  was  started  by  an  Arabian  stallion  captured  from  Napoleon  at 
the  battle  of  Leipzig.  With  that  beginning  the  Austro-Hungarian  Gov- 
ernment has  gradually  developed,  until  to-day  it  spends  over  $800,000 
a  year  in  its  maintenance  of  its  horse-breeding  establishments,  with 
immense  advantage  to  the  individual  horse  breeders  and  without  any 
encroachment  upon  or  interference  with  individual  enterprises.  There 
is  a  single  breeding  station  —  Mezohegyes  —  extending  over  50,000 
acres,  which  employs  6,000  civil  and  military  employees  and  obtains  the 
finest  breeding  stock  available  in  the  markets  of  the  world,  and  to-day  the 
Imperial  Government  makes  no  more  proper  or  beneficial  use  of  its  funds. 

One  of  the  Austrian  royal  stables  at  Kis  Ber  was  headed  by  an  old- 
time  English  thoroughbred,  "Buccaneer."  The  winner  of  the  Derby 
and  the  winner  of  the  Grand  Prix  in  1876  both  came  from  this  stable, 
and  the  descendants  of  Buccaneer  from  this  stable  had  won  in  1902 
$1,100,000,  in  prizes. 


4i6  AMERICAN  FEDERAL   GOVERNMENT 

After  the  fall  of  the  second  empire  the  French  found  their  agricultural 
industries  terribly  crippled,  and  none  more  than  their  breeding  of  horses, 
caused  largely  by  the  terrible  losses  suffered  in  the  Franco-Prussian  war. 
The  French  department  of  agriculture  immediately  took  up  this  work 
with  tremendous  activity,  and  it  has  grown  to  such  an  extent  that  the 
budget  of  1902,  the  last  figures  obtainable,  carried  an  appropriation  of 
$1,600,000  for  horse-breeding  stations,  and  no  one,  to  my  knowledge, 
has  suggested  that  the  French  were  other  than  frugal,  careful,  and  busi- 
nesslike in  their  governmental  expenses.  The  work  is  a  fixture  in  French 
system  and  has  demonstrated  its  great  and  increasing  value. 

The  Prussian  Government  spent  in  1900  a  quarter  of  a  million  dollars, 
and  that  is  for  Prussia  alone.  The  Grand  Duchy  of  Oldenburg  for  a 
hundred  years  has  been  growing  and  developing  a  strain  of  coach  horses, 
until  the  name  of  Oldenburg  is  known,  not  for  any  statesmanship  nor 
for  military  prowess,  but  for  the  superior  excellence  of  its  horses,  from 
Australia  to  Siberia,  from  Germany  to  Japan,  and  from  Lapland  to 
Cape  Town  and  back. 

With  all  their  lack  of  initiative  and  sluggishness  in  many  regards, 
the  Russian  Government  spends  nearly  a  million  dollars  a  year  in  its 
breeding  of  remounts  and  domestic  horses. 

The  Italian  budget  for  1900  carried  nearly  $100,000.  In  1904  the 
Government  embarked  upon  a  much  more  extensive  scheme  and,  in 
addition  to  its  previous  work,  in  round  numbers,  $50,000  was  devoted 
to  the  purchase  of  new  animals,  about  as  much  for  prizes  and  subsidies  to 
different  organizations  of  breeders,  $50,000  for  veterinary  surgeons,  and 
corresponding  amounts  for  other  purposes.  Not  long  ago  the  Italian 
Government  paid  $17,000  for  a  Derby  winner  to  put  in  one  of  its  breed- 
ing establishments.  The  people  are  much  interested  and  regard  the 
work  with  marked  approbation. 

The  English  Government,  through  prizes  and  subsidies,  spends  about 
$30,000  a  year,  and  its  lack  of  initiative  in  this  work  is  the  subject  of 
general  regret.  For  many  years  the  royal  commission  appointed  to 
investigate  the  subject  has  pleaded  with  Parliament  for  larger  appropria- 
tions and  has  pointed  out  the  fact  that  the  English  were  falling  behind 
the  other  countries  in  this  work.  Some  of  the  Canadian  provinces  have 
just  started,  and  the  press  reports  a  few  days  ago  contained  an  item 
that  $25,000  had  been  paid  for  a  single  horse  to  start  a  stable  at  Truro, 
Nova  Scotia. 

We  have  invested,  all  told,  a  little  over  $10,000  in  horses,  and  the 
State  of  Colorado,  where  the  experiment  was  first  tried,  added  almost 
as  much  for  stables  and  similar  expenditures  connected  with  the  work. 
We  have  to-day  the  beginning  of  an  experiment  which  competent  judges 
consider  of  the  greatest  promise.  There  is  no  field  to  which  the  Ameri- 
can farmer  can  more  safely  direct  his  energies  with  greater  hope  and 
certainty  of  return  than  the  breeding  of  fine  horses,  and  there  is  no  place  in 


THE   DEPARTMENTS  417 

which  the  Government  can  more  properly  and  more  effectively  render 
him  assistance  than  by  putting  the  work  on  a  systematic  and  scientific 
basis.  I  do  not  mean  breeding  racing  horses  alone,  but  an  average  horse 
of  superior  speed,  courage,  strength,  and  endurance,  which  is  demanded 
in  increasing  numbers  by  our  domestic  trade  and  by  the  foreign  markets ; 
of  the  kind  for  which  there  is  a  constantly  increasing  demand  and  rela- 
tively decreasing  supply. 

The  cost  of  carriage  horses  has  increased  in  this  country  since  1891 
in  the  average  sum  of  over  $100.  The  same  fact  is  observed  elsewhere. 
The  export  value  is  given  now  at  $308,  as  against  $174  then.  In  1900,  and 
the  year  was  by  no  means  extraordinary,  Germany  imported  90,000 
horses,  and  for  years  Germany  has  spent  from  $17,000,000  to  $20,000,000 
abroad  for  horses  annually.  England  in  the  ten  years  from  1891  to  1900 
purchased  abroad  342,000,  at  a  total  cost  of  about  $100,000,000,  and  the 
demand  is  steadily  growing.  France,  on  the  other  hand,  from  its  greater 
breeding  facilities,  had  large  numbers  to  sell. 

As  I  understand  it,  it  is  not  proposed  to  imitate  the  Italian  or  Austrian 
systems,  with  their  tremendous  establishments  of  government-owned 
horses,  but  rather,  with  small  national  expenditure,  to  direct  and  assist 
cooperative  circles  of  breeders,  looking  to  the  establishment  of  an  avail- 
able native  type  and  to  raising  the  general  average  of  excellence  of  the 
American  road  stock. 

Rather  something  more  or  less  resembling  the  French  system,  which 
is  essentially  cooperative  breeding  under  Government  supervision.  The 
expenditure  is  large,  but  the  returns  are  proportionately  even  larger. 
As  long  ago  as  1887,  with  a  yearly  maintenance  charge  and  expenses  for 
renewals  and  new  stock  amounting  to  some  1,400,000  francs,  there  was 
an  income  to  the  State,  outside  of  sales,  of  815,000  francs,  and  the 
statistics  show  that  if  this  were  the  primary  object,  the  returns  could 
have  been  largely  increased. 

The  real  benefit  has  been  the  widespread  general  improvement  in  the 
common  stock  —  the  half-breeds,  the  work  horse,  and  the  ordinary 
driving  horses  —  exactly  the  field  in  which  we  have  done  very  little 
systematic  work.  What  France  and  Hungary  and  the  Grand  Duchy  of 
Oldenburg  have  done  we  certainly  can,  and  should  do. 

At  first  the  American  breeders  were  inclined  to  look  with  some  question 
upon  this  venture,  but  as  it  has  begun  to  work  itself  out  it  now  meets 
with  almost  universal  approval,  and  I  believe  that  a  few  years  will  dem- 
onstrate that  this  is  one  of  the  wisest  ventures  that  the  Department  has 
undertaken.  Similar  work  in  the  improvement  of  strains  of  dairy  and 
beef  cattle,  swine  and  poultry  and  sheep,  instituted  in  response  to  a  very 
general  request  and  demand,  shows  the  importance  of  the  work  under- 
taken. 

I  have  devoted  considerable  attention  to  the  work  of  two  particular 
bureaus,  not  because  they  excel  the  work  of  the  other  bureaus,  but 

27 


4i8  AMERICAN   FEDERAL   GOVERNMENT 

because  of  the  particular  interest  which  attaches  to  their  work  at  the 
present  time.  The  whole  Department  of  Agriculture  is  serving  the  people 
in  a  most  admirable  way.  It  is  increasing,  cheapening,  and  improving 
our  food  supply ;  it  is  increasing  the  fertility  of  our  country ;  it  is  supply- 
ing the  enormous  demands  of  our  growing  commerce;  it  is  furnishing 
the  best  and  safest  kind  of  employment  to  the  people.  There  is  no  other 
form  of  governmental  activity  that  receives,  or  should  receive,  a  more 
liberal  degree  of  support  at  the  hands  of  Congress  than  does  the  Depart- 
ment of  Agriculture. 

There  is  every  reason  why  that  should  be  so.  The  latter-day  problems 
which  are  pressing  on  this  country  for  solution  are  almost  without  ex- 
ception problems  which  come  from,  and  are  the  result  of  a  change  of  the 
type  of  development  over  great  areas  of  this  country.  A  change  from 
an  essentially  rural  and  agricultural  type  to  an  essentially  industrial  and 
manufacturing  type.  We  view  with  alarm  the  great  and  disproportionate 
growth  of  our  industrial  centers.  We  view  with  alarm  the  influx  of  alien 
hordes,  the  growth  of  socialistic  ideas,  the  growing  urban  discontent  and 
the  strife  of  wage-earners  and  the  masses.  We  regret  and  deplore  the 
drift  from  the  country  to  the  city,  the  passing  of  the  saner  forms  of  rural 
life,  the  simpler  form  of  living  which  characterized  generations  that  have 
gone,  and  thus  far  we  have  only  deplored  and  only  viewed  with  regret. 
We  have  not  done  one  single  thing  for  a  remedy. 

Mr.  Chairman  and  gentlemen,  the  remedy,  if  remedy  there  exists,  in 
my  judgment,  lies  along  the  very  line  on  which  the  Department  of  Agri- 
culture is  working.  It  lies  in  making  the  work  of  the  American  farmer 
more  elevating,  more  pleasant,  more  attractive  and  more  profitable.  It 
lies  in  elevating  his  occupation  to  a  proper  plane  of  dignity,  in  recogniz- 
ing the  importance  of  his  pursuit  as  a  profession  as  well  as  a  means  of 
livelihood.  It  lies  in  teaching  young  men  they  can  devote  to  this  work 
just  as  much  intelligent  preparation,  just  as  much  thoughtful  earnest- 
ness, just  as  much  ability,  as  to  railroad  problems  or  finance  or  any  other 
form  of  industry  that  occupies  the  human  mind.  It  lies  in  keeping  the 
young  men  on  the  farms  and  preventing  their  crowding  into  the  less 
desirable,  but  apparently  more  attractive  occupations. 

And  we  can  best  do  this,  gentlemen,  by  liberally  and  generously  sup- 
porting these  men,  who  for  years,  without  flourish  of  trumpets  and  with- 
out any  accessories  of  military  parade,  have  quietly,  but  with  an  efficiency 
equaled  by  no  other  similar  body  of  men  in  the  world,  been  bringing 
before  the  farmers  of  this  country  the  richest  fruit  of  all  the  ages  and  the 
highest  results  of  scientific  investigation  when  applied  to  the  field  of 
agricultural  science,  and  we  can  not  do  it  by  this  petty  little  distribution 
of  free  garden  seed.  [Applause.] 


THE   DEPARTMENTS  419 

THE   SCIENTIFIC  WORK   OF  THE   GOVERNMENT1 

BY   S.    P.    LANGLEY2 

ANY  attempt  to  make  a  survey  of  the  distinctly  scientific  activities  of  the 
Government  must  necessarily  be  brief  in  a  series  which  has  already  else- 
where considered  the  numerous  incidental  agencies  for  scientific  work  in 
bureaus  attached  to  one  or  another  of  the  Executive  Departments.  How 
numerous  these  are  may  be  inferred  from  the  subjoined  list,  which  is 
confessedly  incomplete,  being  confined  to  those  bureaus  which  have  a 
certain  number  of  distinctly  scientific  employees: 

Under  the  Department  of  the  Treasury: 

Supervising  Architect's  Office  Coast  and  Geodetic  Survey 

Director  of  the  Mint  Marine  Hospital  Service 

Light-House  Board  Bureau  of  Standards 

Department  of  War: 

Surgeon-General's  Office  Bureau  of  Ordinance 

Chief  of  Engineers  Chief  Signal  Officer 

Department  of  the  Navy: 

Hydrographic  Office  Nautical  Almanac 

Naval  Observatory  Bureau  of  Medicine  and  Surgery 

Department  of  the  Interior: 
Patent  Office  Geological  Survey 

Department  of  Agriculture: 

Weather  Bureau  Bureau  of  Forestry 

Bureau  of  Animal  Industry  Bureau  of  Soils 

Bureau  of  Chemistry  Division  of  Biological  Survey 

Office  of  Experiment  Stations  Bureau  of  Plant  Industry 
Division  of  Entomology 

Commission  of  Fish  and  Fisheries. 
» 

Smithsonian  Institution: 

National  Museum  National  Zoological  Park 

Astrophysical  Observatory  Bureau  of  American  Ethnology 

1  Part  of  an  article  in  Scribner's  Magazine,  January,  1904.    Reprinted  by  permission 
Copyright. 

2  Secretary  of  the  Smithsonian  Institution. 


420  AMERICAN   FEDERAL   GOVERNMENT 

The  newly  created  Department  of  Commerce  and  Labor  will  include,  after 
July  i,  1903,  the  following  before-mentioned  bureaus: 

National  Bureau  of  Standards          Commission  of  Fish  and  Fisheries 
Coast  and  Geodetic  Survey  Light-House  Board 


Jefferson's  interest  in  science  made  his  administration  an  especially 
noteworthy  one  from  a  point  of  view  both  scientific  and  educational,  and 
explorations  and  surveys  which  ultimately  resulted  in  the  establishment 
both  of  the  Geological  Survey  and  of  the  Coast  Survey,  were  initiated 
under  his  presidency. 

The  Geological  Survey,  which  was  originally  a  topographic  one, 
practically  originated  in  the  expeditions  of  Lewis,  Pike,  and  Lewis  and 
Clark,  but  was  especially  developed  by  the  surveys  for  a  Pacific  railway, 
followed  by  a  long  list  of  explorations  which  became  systematized  under 
King,  Hayden,  and  Wheeler,  and  definitely  organized  as  the  U.  S.  Geo- 
logical Survey  on  March,  3  1879,  with  Clarence  King  as  its  first  director, 
Major  J.  W.  Powell  being  his  immediate  successor,  and  Prof.  C.  D. 
Walcott  its  present  incumbent. 

The  Geological  Survey  has  at  present  an  extensive  organization  under 
the  Interior  Department,  devoting  its  energies  to  geological  investigation 
of  the  United  States,  to  topographic  surveys  conducted  on  a  large  scale, 
to  a  certain  amount  of  paleontological  work  growing  out  of  such  scientific 
activities  in  connection  with  geological  investigations,  and,  more  recently, 
has  had  placed  under  its  direction  the  initiation  and  carrying  out  of  a 
vast  scheme  for  the  irrigation  of  the  arid  regions  of  the  West,  which  it  is 
expected  will  add  to  the  fruitful  soil  of  the  United  States  many  millions 
of  acres.  This  Survey  is  in  friendly  cooperation  with  other  branches  of 
the  Interior  Department,  notably  the  Land  Office,  and  with  each  State 
in  the  Union;  with  the  Forestry  Bureau  of  the  Department  of  Agricul- 
ture, and  with  the  various  State  geological  and  hydrographic  surveys, 
exhibiting  a  highly  intelligent  organization  of  importance  to  science  and 
of  utility  to  the  people,  giving  to  and  deriving  help  from  individual 
geologists  connected  with  many  of  the  large  and  even  small  universities 
and  colleges  of  the  country,  and  presenting  altogether  the  most  perfect 
system  of  geological  investigation,  combined  with  topographic  and 
economic  work  known  to  any  country.  It  has  produced  a  body  of  most 
capable  men  who  are  original  in  both  their  economic  and  scientific  work. 
It  has  earned  the  confidence  of  Congress  and  the  people,  and  its  require- 
ments both  for  research  and  publication  are  being  met  with  a  generous 
hand. 

The  credit  for  the  inception  of  the  Coast  Survey  is  divided  among 
various  persons,  though  it  would  appear  to  have  early  enlisted  the  inter- 
est of  President  Jefferson  and  Secretary  Gallatin,  and  to  have  been 
powerfully  stimulated  by  the  arrival  in  this  country  of  Ferdinand  Ru- 


THE   DEPARTMENTS  421 

dolph  Hassler,  a  Swiss,  who  virtually  made  the  plans  upon  which  the 
subsequent  operations  of  this  Survey  were  prosecuted. 

The  Survey  dates  its  origin  from  an  Act  of  Congress  passed  in  1807 
for  surveying  the  coasts  of  the  United  States.  It  had  a  checkered  and 
somewhat  intermittent  career  until  1832  when  it  was  reorganized,  though 
its  control  has  from  time  to  time  alternated  between  various  departments. 
It  was  attached  to  the  Navy  Department  for  a  brief  period;  then  for 
many  years  it  was  under  the  Treasury,  and  by  Act  of  Congress  of  this 
year  has  been  transferred  to  the  new  Department  of  Commerce.  It 
has  had  as  its  Superintendents  after  Hassler  such  eminent  men  as  Bache, 
Peirce,  Patterson,  Hilgard,  Mendenhall,  Pritchett  and  its  present  incum- 
bent, Tittman.  It  has  now  over  one  hundred  field  officers,  and  a  fleet 
of  twelve  steamers  and  six  sailing  vessels,  besides  many  launches  and 
small  craft.  In  addition  to  topographic  work  it  carries  on  geodetic  and 
magnetic  surveys,  it  has  had  an  office  of  weights  and  measures,  and  has 
been  custodian  of  the  National  standards.  The  development  of  this  last 
function  recently,  and  with  the  fullest  cooperation  of  the  Coast  Survey, 
has  resulted  in  the  establishment  of  an  independent  Bureau  of  Standards 
of  large  scope. 

Superintendent  Tittman,  in  a  recent  description  of  its  work,  stated 
that  it  had  since  its  inception  made  about  30,000  square  miles  of  topo- 
graphic surveys,  sounded  minutely  nearly  300,000  square  miles  of  water, 
and  made  deep-sea  soundings  over  little  less  than  a  million  square  miles. 
It  has  completed  a  first  survey  of  the  Atlantic,  Gulf,  and  Pacific  Coasts  of 
the  United  States,  and  its  triangulations  cover  between  300,000  and 
400,000  square  miles.  It  has  published  over  500  charts  besides  the  Coast 
Pilot  volumes  of  the  Atlantic  and  Pacific  Coasts ;  and  carefully  studied  the 
laws  of  the  earth's  magnetism  (these  latter  being  now  investigated  through 
magnetic  observatories  in  cooperation  with  foreign  governments),  and  its 
geodetic  work  is  also  being  carried  on  with  international  cooperation. 

The  Coast  Survey,  moreover,  is  frequently  called  upon  to  serve,  through 
its  officers  as  experts,  in  the  determination  of  boundaries,  whether  be- 
tween the  States  or  in  matters  involving  disputes  with  other  nations  hold- 
ing territory  adjacent  to  the  United  States.  Since  the  Spanish- American 
War,  important  labors  have  devolved  upon  the  survey  in  Porto  Rico 
and  in  the  Philippines,  where  coast  surveys  are  urgently  needed  and  are 
of  high  importance  for  military  and  commercial  purposes. 

The  difference  between  the  unscientific  and  the  scientific  idea  of  the 
order  of  this  world,  already  alluded  to,  can  hardly  be  emphasized  more 
than  in  the  conception  which  made  a  meteorological  bureau  rational  and 
possible.  "The  wind  bloweth  where  it  listeth"  was  the  conception  of 
ancient  times,  but  the  eighteenth  century  had  already  reached  the  idea 
that  the  movements  of  the  winds,  from  the  Trades  which  blew  across 
the  planet  to  the  eddy  that  whirls  the  dust  in  the  street,  are  as  much 
subject  to  law  as  are  the  courses  of  the  stars. 


422  AMERICAN   FEDERAL   GOVERNMENT 

The  Weather  Bureau  is  now  a  highly  equipped  organization  under  a 
Chief,  Willis  L.  Moore,  the  officer  third  in  rank  in  the  Department.  The 
country  is  covered  with  its  stations.  Its  reports,  issued  twice  daily,  have 
come  to  be  looked  for  in  every  portion  of  the  United  States  by  all  the 
people,  whose  daily  life  is  to  a  certain  extent  influenced  by  them,  and 
the  value  of  it3  work  in  the  saving  of  life  and  shipping  on  the  coasts  by 
its  prediction  of  storms  and  floods,  as  well  as  the  saving  to  the  crops 
through  timely  notice  of  sudden  changes,  such  as  frosts,  etc.,  is  incal- 
culable. 

The  work  which  the  people  know  best  is  the  general  forecasts  of  the 
weather,  which  are  conducted  on  the  best  obtainable  system;  forecasts 
which,  though  founded  on  an  order  of  things  as  subject  to  law  as  the 
courses  of  the  stars,  are  far  from  having  yet  reached  the  precision  of 
astronomical  science,  though  the  results  obtained  are  unrivalled  in  their 
excellence  by  those  of  any  other  nation.  The  preparation  of  the  weather 
map  involves  the  daily  sounding  of  the  heights  of  the  aerial  ocean  above, 
simultaneously  by  observers  all  over  the  country,  and  the  joining  of 
these  sounding  stations  on  the  map  by  contour  lines  which  indicate  the 
direction  of  that  great  aerial  ocean's  flow.  This  direction  can  not  of 
course  be  dete:  mined  with  anything  like  the  certainty  attainable  in  the 
deduction  of  the  path  of  a  star,  yet  the  result,  though  still  a  probability 
only,  is  a  very  useful  one  by  which  we  all  guide  our  daily  lives.  Will  it 
be  greatly  better  for  us  if  it  is  ever  otherwise,  and  we  come  to  the  time 
when  we  know  long  in  advance  what  the  weather  will  be,  and  this  and 
many  other  like  uncertainties  are  wiped  out  from  the  variety  of  our 
daily  life? 

These  general  maps  are  prepared  in  the  office  at  Washington,  from 
despatches  sent  by  local  offices,  and  the  Bureau's  use  of  the  telegraph 
service  alone  costs  $300,000  per  annum.  It  distributes  in  the  shape  of 
cards,  maps,  and  publications  nearly  55,000,000  pieces  yearly,  and  in 
cases  of  special  agricultural  industries,  particularly  susceptible  to  de- 
struction through  changes  in  weather,  special  services  have  been  estab- 
lished, notably  for  cotton,  sugar,  and  rice,  in  the  Southern  States,  and  for 
fruit  and  wheat  in  California. 

Meteorology  is  a  science  which,  in  the  main,  can  only  be  prosecuted 
successfully  through  the  Government,  owing  to  the  fact  that  deductions 
must  be  based  upon  a  great  number  of  observations  carried  on  for  long 
periods  and  over  wide  areas;  so  that  incidentally  to,  and  prerequisite 
for,  the  conduct  and  improvement  of  its  practical  and  economic  work, 
scientific  investigations  of  the  highest  moment  have  been  from  time  to 
time  carried  on  under  the  auspices  of  this  branch  of  the  service.  The 
most  notable  of  these  in  recent  years  has  been  the  aerial  research  of 
studying  meteorological  phenomena  at  high  altitudes  through  the  use 
of  kites,  experiments  in  wireless  telegraphy,  and  in  other  fields  relating 
to  atmospheric  phenomena.  A  scientific  man  whose  name  has  long  been 


THE   DEPARTMENTS  423 

honorably  associated  with  this  original  work  is  Cleveland  Abbe,  who  has 
been  connected  with  the  service  since  1867,  and  who  still  continues 
active  as  a  prosecutor  of  it,  and  as  Editor  of  the  Bureau's  publications. 


Historians  and  philosophers  have  not  infrequently  remarked  that  the 
stress  of  war  results  in  the  advancement  of  science  and  learning.  Napo- 
leon's invasion  of  Egypt  carried  in  its  train  the  unlocking  of  the  mysteries 
of  the  hieroglyphs  and  the  production  of  the  great  work  "  Description 
de  PEgypte."  More  recently  the  foundation  of  the  University  of  Strass- 
burg  signalized  the  close  of  the  Franco-Prussian  War,  while  the  estab- 
lishment of  the  Johns  Hopkins  University  was  a  direct  resultant  of  the 
war  between  the  States,  and  was  intended,  at  least  in  the  mind  of  the 
founder,  to  assist  in  healing  the  breaches  this  had  created. 

It  was  during  the  darkest  days  of  this  same  war  that  Congress  estab- 
lished the  National  Academy  of  Sciences,  whose  creation,  foreshadowed 
by  the  organization  of  such  private  societies  as  the  American  Association 
for  the  Advancement  of  Science,  had  been  long  in  the  minds  of  public 
men.  The  actual  need  of  scientific  organization  was  shown  during  the 
war,  when  this  nation  apparently  first  awakened  to  the  fact  that  in  every 
department  of  activity,  and  more  especially  in  the  military  and  naval 
establishments,  the  services  of  scientific  experts  were  required.  During 
the  war  period,  Joseph  Henry,  the  Secretary  of  the  Smithsonian  Institu- 
tion, was  in  almost  constant  intercourse  with  President  Lincoln ;  and  in 
that  era,  before  the  days  of  specialization,  he  was  called  on  to  give  advice 
on  the  most  diverse  subjects. 

It  was  then  that  the  idea  of  a  nonresident  National  Academy,  without 
localization,  like  the  National  Academy  of  Paris  or  the  Royal  Society  of 
London,  but  composed  of  eminent  men,  whose  services  might  be  called 
into  requisition  by  the  Government,  was  created.  This  body  continues 
in  existence,  as  the  most  generally  representative  and  dignified  aggrega- 
tion of  American  men  of  science,  and  while  suffering  under  the  disad- 
vantages of  not  having  a  permanent  home,  nor  officials  whose  time  can 
be  exclusively  devoted  to  its  work,  has  in  special  cases  when  called  upon 
rendered  valuable  service  to  the  Government  by  its  advice. 

The  Department  of  Agriculture  has  become  a  large  factor  in  the 
scientific  life  of  the  Government,  so  large  as  to  render  possible  in  a  brief 
article  only  the  barest  enumeration  of  its  activities. 

As  noted  above,  it  acquired  the  weather  service,  which  had  been  suc- 
cessfully carried  on  through  various  agencies.  In  the  distribution  of 
seeds  already  alluded  to,  its  work  has  grown  to  vast  proportions. 

The  systematic  investigations  in  nearly  every  department  of  biological 
science  directly  or  remotely  connected  with  the  life  and  health  and  diseases 
of  animals  and  plants,  the  observations  of  the  life  habits  of  all  forms  which 
may  be  either  helpful  or  noxious  to  agriculture,  investigations  into  the 


424  AMERICAN  FEDERAL   GOVERNMENT 

origin  and  spread,  the  restriction  and  the  cure  of  contagious  diseases 
among  domestic  animals,  are  but  a  part  of  its  work.  These  are  carried 
on  in  highly  equipped  laboratories  by  great  numbers  of  investigators, 
whose  work  is  welded  by  excellent  organizers  into  a  uniform,  compact, 
and  intelligent  whole,  together  with  a  system  of  distribution  of  infor- 
mation of  a  popular  and  untechnical  character  through  suitable  publica- 
tions. This  is  aided  by  a  most  efficient  support  on  the  part  of  Congress, 
and  all  these  and  more  have  been  the  care  of  this  Department,  which 
has  rendered  service  of  incalculable  importance,  not  only  in  the  spread 
of  ascertained  knowledge  of  economic  value,  but  in  the  enlargement  in 
all  domains  of  such  knowledge,  presenting  the  most  signal  success  of 
such  scientific  organization  yet  undertaken  by  the  National  Government. 

In  1902  a  partial  reorganization  was  effected,  the  most  conspicuous 
advance  being  the  establishment  and  greater  enlargement  of  the  Depart- 
ment of  Forestry,  which  is  seriously  grappling  with  the  most  interesting 
and  important  problem  of  the  control  of  timberlands,  not  only  upon  the 
public  reserves,  but  even  in  the  vast  acreage  in  private  hands;  and  to 
such  work  the  new  division  under  the  present  charge  of  Gifford  Pinchot 
is  devoting  itself. 

The  surgeons  of  the  Army  and  the  Navy  from  early  days  exhibited 
their  interest  in  scientific  work,  a  number  of  them  being  among  the  pio- 
neer naturalists  and  ethnologists  in  America.  As  a  result  of  the  important 
professional  labors  of  the  surgeons  in  the  Army  and  again,  as  an  out- 
growth of  the  War  between  the  States,  the  Army  Medical  Museum  was 
established,  with  the  Surgeon- General's  Library,  which  is  believed  to 
be  the  most  complete  medical  library  in  the  world,  and  which,  under  the 
direction  of  John  S.  Billings,  aided  by  Robert  Fletcher,  not  only  collected 
a  unique  library,  but  issued  the  most  comprehensively  arranged  and 
useful  catalogue  known  in  any  department  of  learning.  It  has  added 
to  it  a  medical  and  surgical  collection  of  the  highest  importance  to  the 
profession  and  has  stimulated  the  growth  within  the  last  few  years  of  a 
military  medical  college. 

The  United  States  Fish  Commission,  established  in  1871,  has  illus- 
trated in  a  most  gratifying  manner  the  great  possibilities  of  applying 
earnest  scientific  work  to  the  wants  of  the  people,  and  these  have  brought 
about  results  of  vast  importance  and  of  great  economic  value.  It  was 
established  as  an  outgrowth  of  the  Smithsonian  Institution  under  its 
Secretary,  Spencer  F.  Baird,  who  is  credited  with  the  statement  that  a 
mile  of  ocean  along  our  coasts  can  furnish  more  food  products  than  ten 
miles  of  fertile  land.  During  his  lifetime  it  was  to  a  certain  extent  carried 
on  in  connection  with  the  Smithsonian  Institution,  and  has  done  a  great 
work  for  the  advancement  of  our  knowledge  of  the  life  of  every  descrip- 
tion of  creature  inhabiting  the  fresh  waters  of  our  country  and  the  oceans 
surrounding  it.  It  has  increased  to  a  degree  hardly  to  be  believed  the 


THE   DEPARTMENTS  425 

quantity  of  fish  available  for  our  people,  and  has  put  within  the  reach 
of  the  poor,  healthful  and  nourishing  food,  at  one  time  only  possible  for 
the  rich  to  enjoy. 

The  general  work  of  the  Commission  as  administered  is  under  three 
divisions,  which  are  known  as: 

(1)  Division  of  Inquiry  respecting  food  fishes. 

(2)  Division  of  Fisheries. 

(3)  Division  of  Fish  Culture. 

The  principal  part  of  its  scientific  work  is  under  the  first  division, 
ordinarily  known  as  the  Division  of  Scientific  Inquiry,  and  comprises : 

1.  The  investigation  of  the  fishing-grounds  of  the  Atlantic,  Gulf,  and 
Pacific  Coasts  and  the  inland  waters  of  the  United  States,  with  the  view 
of  determining  the  food  resources  and  the  developing  of  the  commercial 
fisheries. 

2.  The  investigation  of  the  causes  of  the  decrease  of  food  fishes  in  the 
waters  of  the  United  States. 

3.  The  study  of  the  waters  of  the  coast  and  interior  to  determine  the 
feasibility  of  increasing  their  natural  resources. 

4.  The  dissemination  of  information  concerning  the  distribution  and 
habits  of  marine  animals  and  their  capture,  and  their  preparation  for 
the  markets. 

5.  Examination  into  the  adaptability  of  sites  for  fish-cultural  stations 
and  investigation  of  the  diseases  incident  to  fishes  at  such  stations  and 
at  large. 

The  second  division,  known  as  the  Division  of  Fisheries,  deals  with 
the  economic  phases  of  the  fisheries  themselves,  such  as  the  collection 
of  statistical  data,  the  study  of  the  apparatus  and  methods  of  capture 
with  special  reference  to  their  utility  and  their  effect  on  the  fisheries, 
the  best  methods  of  utilizing  the  products,  the  effect  of  fishery  legislation, 
international  fishery  relations,  and  all  other  matters  affecting  the  economy 
of  aquatic  resources. 

The  work  of  the  Division  of  Fish  Culture  consists  in  the  hatching  and 
distribution  of  marine  and  fresh- water  fishes  for  the  purpose  of  maintain- 
ing existing  fisheries,  restocking  grounds  that  have  been  depleted  by 
over-fishing  or  injurious  methods,  and  creating  new  fisheries  either  by 
the  introduction  of  foreign  fishes  in  the  waters  of  the  United  States  or 
transplanting  native  fishes  as,  for  example,  the  establishment  of  the  shad 
and  striped  bass  fishery  on  the  Pacific  Coast.  The  results  of  the  work  of 
this  division  have  been  most  gratifying.  Millions  of  pounds  of  fish  are 
now  captured  in  waters  where  they  were  originally  unknown,  and  equally 
valuable  results  have  been  secured  not  only  in  maintaining  the  various 
important  fisheries  of  the  Atlantic  and  Pacific  Coasts,  but  grounds  which 
had  become  depleted  are  now  supporting  valuable  fisheries.  This  work 
is  carried  on  at  thirty-five  hatching  stations  established  by  Act  of  Con- 
gress in  the  various  States,  and  four  railroad  cars  are  in  constant  use  in 


426  AMERICAN  FEDERAL   GOVERNMENT 

distributing  their  products,  besides  a  number  of  small  boats,  launches, 
and  vessels. 

Entirely  new  avenues  of  scientific  research  have  been  opened  by  the 
Commission,  with  which  the  name  of  G.  Brown  Goode  will  ever  be  asso- 
ciated, most  notably  in  the  discovery  of  the  deep-sea  forms  of  the  North 
Atlantic  basin.  His  work,  with  the  cooperation  of  such  men  of  distinc- 
tion as  Alexander  Agassiz  and  David  Starr  Jordan,  aided  by  the  faithful 
and  efficient  labors  of  a  large  staff  of  ichthyologists  and  fish-culturists, 
has  resulted  in  securing  a  systematic  investigation  of  the  waters  of  the 
United  States,  and  the  biological  and  physical  problems  which  they 
present.  By  a  study  of  the  methods  of  fisheries  past  and  present,  the 
causes  of  deterioration  of  fish  in  various  waters  have  been  discovered 
and  remedies  applied,  and  useful  food  fishes  have  been  enormously 
multiplied  throughout  the  country ;  whilst  important  international  prob- 
lems dealing  both  with  sea  and  fresh-water  fisheries,  and  with  the  prob- 
lem of  the  fur  seals,  have  been  powerfully  aided  by  this  Commission  and 
by  the  experts  connected  with  it. 

And  yet  the  expense  of  the  Commission  is  inconsiderable  when  com- 
pared with  the  increase  of  wealth  and  the  means  of  livelihood  it  affords 
the  American  people. 

It  is  not  so  very  long,  as  nations  count  years,  since  the  length  of  a  king 
of  England's  arm,  marked  rudely  on  an  iron  bar  by  a  blacksmith's  chisel, 
was  made  a  national  standard  of  lengths;  and  this  was  a  real  advance 
over  a  condition  of  things  existing  when  almost  every  country  had  its 
own  measures. 

In  contrast  to  this,  we  have  now  in  Washington  the  Bureau  of  Stand- 
ards, alluded  to  above  in  connection  with  the  Coast  Survey,  which  is 
intended  for  the  purpose  of  the  standardization  of  machines  for  measure- 
ment and  other  service,  together  with  the  instruments  used  in  everyday 
life,  as  well  as  for  philosophical  apparatus.  It  is  under  the  charge  of  a 
capable  physicist  and  administrator,  S.  W.  Stratton.  Its  work  will 
comprehend  researches  in  the  domain  of  physics,  extending  both  into 
chemistry  and  engineering,  and  Congress  has  appropriated  funds  for 
the  erection  of  buildings  and  the  purchase  of  apparatus.  A  mechanical 
laboratory  costing  about  $125,000  and  a  physical  building  costing  about 
$200,000  will  be  erected.  This  bureau  is  so  new  that  its  results  can 
hardly  yet  be  spoken  of,  but  in  a  country  like  ours,  in  which  so  much 
of  the  national  wealth  and  progress  is  due  to  inventive  genius  and  im- 
provement of  machinery,  any  steps  tending  to  the  further  introduction 
of  exactness  in  this  important  branch  of  our  national  life  can  not  fail  to 
be  productive  of  most  useful  results. 

The  Marine  Hospital  Service  and  the  Department  of  Public  Health, 
which  among  other  things  has  under  its  care  all  federal  supervision  of 


THE   DEPARTMENTS  427 

these  departments  of  sanitation,  and  so  far  as  possible  without  conflict- 
ing with  state  laws,  the  control  of  all  persons  suffering  from  contagious 
diseases,  has  rendered  a  great  service  to  the  country  by  its  intelligent 
handling  of  the  various  contagious  diseases  and  plagues  which  from 
time  to  time  have  invaded  our  shores.  Under  this  service  a  laboratory 
has  been  recently  established  where  constant  and  successful  experiments 
are  being  made  in  that  most  important  branch  of  medical  science,  pre- 
ventive medicine. 

The  Bureau  of  Labor,  established  in  1885,  has,  incidentally  to  its 
practical  functions,  done  much  valuable  research  work  and  in  the  col- 
lection and  publication  of  statistics  bearing  upon  social  and  economic 
problems,  and  has  been  effective  in  bringing  about  a  better  understand- 
ing of  the  conditions  of  human  labor. 

Many  agencies  remain  unspoken  of,  but  among  these,  two,  the  Na- 
tional Library,  known  to  the  law  as  the  Library  of  Congress,  and  the 
Smithsonian  Institution,  must  have  separate  mention. 

Scientific  research  in  the  modern  sense  is  impracticable  without  access 
to  books,  since  it  is  incumbent  upon  each  investigator  to  examine  the 
works  of  his  predecessors,  and  in  announcing  his  results  to  state  the 
extent  of  his  dependence  upon  those  who  have  preceded  him  in  the  field. 

The  Library  of  Congress  was  not  established,  of  course,  with  any 
such  purpose  in  view.  It  was  at  first  strictly  what  its  name  implies,  and 
its  need  was  felt  even  as  early  as  the  Continental  Congress.  The  origin 
of  the  present  library  goes  back  to  the  removal  of  the  Capitol  to  Wash- 
ington, but  in  the  very  beginning,  as  early  as  1806,  it  was  recognized  that 
Congress  itself  required  something  different  from  mere  law  books  or 
important  books  of  reference,  and  the  general  subjects  which  might  now 
be  termed  polite  literature  and  "the  humanities"  began  to  be  incorpo- 
rated in  the  Library  at  that  early  date.  This  policy,  which  has  been 
kept  up  and  extended,  has  made  the  Library  in  fact,  if  not  in  name,  a 
National  Library. 

From  the  Capitol  it  was  removed  in  1897  to  its  splendid  new  building, 
one  certainly  better  adapted  to  library  purposes  than  any  other  in  the 
world.  This  Library  contained,  in  1902,  nearly  800,000  books  and  over 
300,000  pamphlets,  a  total  of  over  1,000,000  titles,  this  being  exclusive 
of  the  law  library  and  manuscripts,  maps,  pieces  of  music,  and  prints, 
which  together  make  a  total  considerably  over  half  a  million.  It  is  now 
virtually  a  general  library,  and  while  it  bears  some  special  relation  to 
the  needs  of  Congress,  and  of  necessity  devotes  itself  as  one  of  its  main 
features  to  Americana,  is  still  a  library  universal  in  scope,  and  in  it  there 
is  represented  every  department  of  human  knowledge.  Upon  it  the  men 
of  science  connected  with  the  Government  may  draw  freely. 

By  judicious  expenditure  of  its  enlarged  means  for  the  purchase  of 


428  AMERICAN  FEDERAL   GOVERNMENT 

books  within  recent  years,  it  has  added  materially  to  its  collections  in 
the  physical  and  natural  sciences.  It  is  engaged  in  the  publication  of 
special  lists  and  bibliographies  which,  while  not  directly  intended  for 
scientific  purposes,  yet  have  much  value  to  science,  and  are  a  most  effi- 
cient aid  to  the  prosecution  of  the  scientific  work  of  every  branch  of 
the  Government. 

Of  necessity  special  libraries  also  exist ;  that  of  the  Surgeon-General's 
Office,  the  most  notable,  has  already  been  alluded  to,  but  the  others, 
maintained  by  the  Geological  Survey,  the  Department  of  Agriculture, 
and  indeed  in  every  scientific  bureau  and  office  of  the  Government,  are 
of  increasing  value  and  utility  to  persons  engaged  in  special  work. 
These  are  conducted  and  added  to  in  harmonious  relations  with  each 
other,  and  with  the  Library  of  Congress;  so  that  without  a  common 
organization,  there  has  grown  up  an  understanding  which  avoids  un- 
necessary duplication,  and  which  arranges  for  the  interchange  of  books 
among  the  various  libraries,  and  altogether  furnishes  a  most  efficient 
system  for  procuring  and  using  scientific  works. 

I  come  last  to  speak  of  the  Smithsonian  Institution.  I  have  endeavored 
in  the  little  space  allotted,  to  briefly  review  the  scientific  activities  of  the 
United  States  Government.  Every  administrator  is  prone  to  the  natural 
risk  of  magnifying  the  work  of  his  own  department,  but  the  Smithsonian 
Institution,  occupying  a  unique  position  in  that  it  is  a  kind  of  ward  of 
the  Nation,  has  secured  for  itself  so  firm  a  hold  upon  the  interest  of  the 
people  of  this  country,  and  so  distinguished  a  position  abroad,  that  it 
may  be  spoken  of  objectively. 

The  Smithsonian  Institution,  as  is  known  to  all  men,  originated  in  the 
bequest  of  an  Englishman,  James  Smithson,  who  died  in  1829  and  left 
his  fortune  to  the  United  States  to  found  at  Washington  an  establish- 
ment under  the  name  of  the  Smithsonian  Institution  "for  the  increase 
and  diffusion  of  knowledge  among  men."  Congress  after  much  discus- 
sion passed  a  law  in  1846  founding  the  Institution.  It  created  the  "Es- 
tablishment," or  corporate  body,  consisting  of  the  President  of  the  United 
States,  the  Vice-President,  the  Chief  Justice  and  the  members  of  the 
Cabinet.  It  provided  for  a  Board  of  Regents  for  its  government,  and 
for  a  Secretary  who,  as  Secretary  to  both  of  these  Boards,  should  be  the 
executive  officer.  It  named  as  the  principal  purposes  to  which  the 
Institution  was  to  be  devoted,  the  establishment  of  a  library,  of  a  museum, 
of  a  gallery  of  art,  the  giving  of  lectures,  and  other  cognate  methods  in 
carrying  out  the  will  of  its  founder. 

At  the  time  of  its  organization,  the  Institution  was  relatively  the  best 
endowed  scientific  establishment  in  America.  Its  various  purposes 
enumerated  in  its  charter  have  been  carried  out.  It  formed  a  library 
(now  to  a  great  extent  deposited  in  the  Library  of  Congress)  which  is  the 
best  collection  of  transactions  of  learned  societies  and  of  scientific  peri- 


THE   DEPARTMENTS  429 

odicals  in  the  United  States,  and  one  of  the  great  collections  of  the  world. 
It  began  a  museum,  now  known  as  the  National  Museum,  and  still 
under  its  charge,  which  in  everything  that  pertains  to  the  fauna  and 
flora,  the  ethnology  and  geology  of  North  America,  is  the  most  consider- 
able in  existence,  and  which  bears  within  itself  the  nuclei  of  most  im- 
portant collections  in  American  History  in  the  progress  of  mechanic  arts 
and  in  all  the  departments  of  learning  which  go  to  make  up  a  museum 
of  universal  scope. 

The  Institution  exists  for  two  main  purposes: 

1.  The  Increase,  and 

2.  The  Diffusion,  of  Knowledge. 

In  addition  to  carrying  on  the  objects  in  furtherance  of  these  purposes 
enjoined  upon  it  by  its  fundamental  law,  it  has  published  from  its  private 
fund  contributions  for  the  increase  of  human  knowledge  of  almost  every 
description,  resulting  from  explorations,  the  study  of  collections,  original 
investigations,  and  experiment. 

It  has  established  also  a  system  of  international  scientific  exchanges 
which  has  become  a  recognized  means  of  bringing  the  learned  institu- 
tions and  learned  men  of  all  countries  into  closer  relations. 

The  income  of  this  original  fund  has  been  in  later  years  supplemented 
by  annual  appropriations  from  the  Government,  for  extending  and 
carrying  on  the  work  of  the  Museum,  the  Exchanges,  the  maintenance 
of  a  Zoological  Park,  an  Astrophysical  Observatory,  and  a  Bureau  of 
American  Ethnology.  The  relation  of  the  Institution,  as  such,  to  these 
various  agencies,  is  that  of  a  trustee  for  the  National  Government, 
entrusted  with  their  direction  and  supervision,  and  bearing  the  respon- 
sibility for  their  proper  and  effective  administration. 

The  National  Museum,  under  the  direction  of  the  Smithsonian  Institu- 
tion, does  not  consist  solely  of  objects  for  entertainment,  but  is  rather 
a  vast  organized  collection  of  the  ideas  and  works  of  man  on  this  conti- 
nent, beginning  with  primitive  man,  and  showing  how  his  simple  arts 
and  his  simple  faith  grew  into  complex  culture  and  organized  religions. 
It  is  impossible  here  to  give  an  adequate  conception  of  the  range  of  this 
collection,  which  includes  with  the  material  products  of  this  continent, 
relics  of  the  Nation's  history  in  war  and  peace,  and  perhaps  the  finest 
existing  collection  of  personal  relics  of  Washington  and  other  historic 
Americans.  It  is  the  place  of  deposit  of  the  collections  of  the  Bureau 
of  Ethnology,  which,  under  the  care  of  the  late  Major  Powell,  has  de- 
scribed and  published  the  history  of  primitive  American  man.  Congress 
has  just  appropriated  three  and  one-half  millions  of  dollars  for  the  ade- 
quate housing  of  these  great  collections. 

The  Bureau  of  International  Exchanges  is  rather  for  the  convenience 
of  scientific  men  in  the  matter  of  diffusing  their  researches  than  a  work 
of  science  in  itself,  though  it  spreads  its  operations  over  the  whole  world 
and  has  30,000  correspondents  outside  of  the  United  States. 


430  AMERICAN   FEDERAL   GOVERNMENT 

The  National  Zoological  Park  grew  from  a  small  collection  maintained 
in  the  rear  of  the  present  building  of  the  Institution  to  the  occupancy  of 
its  present  picturesque  grounds  of  167  acres,  now  embraced  in  the  ever- 
growing city.  Its  fundamental  object  is  the  preservation  of  our  North 
American  game.  It  is  not  supposed  that  it  can  in  this  small  space  alone 
keep  from  extinction  the  races  which  are  fast  following  the  buffalo,  but 
it  can  offer  a  city  of  refuge  for  them  and  an  object-lesson  under  the  im- 
mediate eye  of  Congress. 

The  Astrophysical  Observatory  is  dealing  with  man's  relations  to  the 
sun  and  with  problems  which  affect  his  welfare  in  a  material  sense.  It 
has  extended  the  known  spectrum,  through  the  invisible  infra-red,  to 
an  extent  many  times  that  known  to  Sir  Isaac  Newton. 

The  establishment  of  the  Smithsonian  Institution  at  the  time  when  it 
came  into  existence  was  a  matter  of  supreme  importance  for  the  develop- 
ment of  science  in  America.  Sixty  years  ago,  the  funds  for  research  were 
small  and  the  avenues  of  publication  inconsiderable.  Two  or  three 
important  scientific  societies  were  in  existence,  but  their  funds  were 
limited.  No  body  of  scientific  men  anywhere  acknowledged  a  leader, 
and  at  a  time,  too,  when  most  important  investigations  both  in  the 
physical  and  natural  sciences  were  being  made. 

The  acceptance  by  the  Government  of  the  trusteeship  of  this  fund  of 
Smithson's  gave  a  national  center  for  American  science  to  gather  about. 
It  brought  into  existence,  too,  an  organization  which  in  Joseph  Henry 
found  a  man  strong  enough  to  take  up  uninvestigated  problems  which 
had  not  yet  been  moulded  into  definite  practical  shape,  and  to  advance 
their  solution  to  a  point  where  others  might  avail  themselves  of  the 
Institution's  work. 

This,  in  brief,  was  the  early  policy  of  the  Institution,  and  continues  so 
to  the  present  day.  As  indicated  in  the  preceding  portions  of  this  article, 
the  Smithsonian  Institution  has  had  much  to  do  with  originating  work 
in  other  Government  scientific  departments.  The  importance  of  its 
early  contributions  to  meteorology  and  to  the  establishment  of  what  is 
now  the  weather  service  is  universally  acknowledged.  It  gave  aid  to 
those  explorations  which  in  a  large  measure  resulted  in  the  formation  of 
the  Geological  Survey.  The  Fish  Commission,  the  Bureau  of  Ethnology 
and  the  National  Herbarium  originated  here.  The  system  of  interna- 
tional exchange  of  scientific  publications,  projected  by  the  Smithsonian, 
found  no  one  to  take  it  up  until  the  Institution  organized  its  work,  and 
this  system  both  of  Governmental  exchanges  and  scientific  exchanges, 
it  continues  to  administer.  Not  so  well  known  are  its  relations  to  such 
remote  matters  as  the  acoustics  of  the  Hall  of  the  House  of  Representa- 
tives, the  methods  by  which  vessels  signal  in  fogs  and  the  work  of  the 
Light-House  Board. 

In  pursuance  of  its  motto  "Per  Orbem,"  it  has  aided  by  grants  not 
only  in  the  United  States  but  in  other  parts  of  the  world,  investigators 


THE   DEPARTMENTS  431 

engaged  in  original  scientific  work.  It  has  published  treatises  containing 
new  information  of  great  value  to  students,  and  it  has  distributed  among 
the  people  probably  more  than  a  half  million  volumes  containing  accurate 
scientific  information  in  popular  form.  Ethnological  researches  among 
the  American  Indians  were  powerfully  stimulated  by  it  from  its  incep- 
tion, and  the  first  volume  of  its  well-known  series  of  "Smithsonian  Con- 
tributions to  Knowledge"  was  upon  this  subject.  The  researches  made 
here  in  connection  with  the  problem  of  aerial  navigation  have  been  largely 
instrumental  in  taking  this  work,  heretofore  derided  and  considered 
impracticable,  into  the  realms  of  respectable  and  active  scientific 
investigation. 

Through  a  special  fund,  known  as  the  Hodgkins  Fund,  a  portion  of 
which  is  devoted  to  the  investigation  of  atmospheric  air  in  relation  to 
the  welfare  of  man,  our  knowledge  of  the  composition  and  properties 
of  the  atmosphere  has  been  greatly  extended.  The  Institution  laid  the 
foundation  of  methods  of  scientific  library  work  in  cataloguing,  which 
so  distinguishes  American  libraries  from  others,  it  originated  the  project 
of  cataloguing  all  scientific  papers  by  international  cooperation  and  is 
at  present,  in  default  of  any  action  by  Congress,  acting  as  the  represen- 
tative of  the  United  States  in  the  present  International  Catalogue  of 
Scientific  Literature  published  by  a  bureau  with  its  seat  at  London. 
Under  its  auspices,  and  through  it,  such  organizations  as  the  American 
Historical  Association  have  issued  many  works  of  value  to  historians 
and  public  men. 

It  remains  in  conclusion  to  point  out  the  fact  not  usually  recognized, 
that  it  was  through  the  gift  of  Smithson  and  its  acceptance  by  the  Gov- 
ernment that  the  steps  for  Governmental  science,  which  were  deemed 
difficult  under  constitutional  limitations,  were  gradually  made  easy  after 
the  Institution  was  founded.  Direct  appropriations  for  science  were, 
and  continue  to  be,  resisted  upon  constitutional  grounds,  but  when  the 
Smithson  Fund  was  finally  accepted  by  the  Government  and  provision 
for  carrying  out  the  will  of  its  founder  was  made,  and  Congress  imposed 
upon  the  Institution  obligations  which  its  fund  was  not  sufficient  to  meet, 
notably  the  establishment  of  a  museum  for  the  reception,  care,  and 
exhibition  of  the  results  of  Government  exploring  expeditions,  the  step 
was  made  easy  for  Congress  to  provide  through  the  Institution  for  carry- 
ing out  its  own  behests ;  and  much  easier  than  if  the  different  organiza- 
tion of  such  establishments  outright  and  upon  an  independent  basis  had 
been  attempted. 

It  is  difficult  to  get  practical  men  to  provide  for  projects  which  are 
still  in  the  experimental  stage.  The  work  necessary  to  the  creation  of 
the  Weather  Bureau  and  the  Fish  Commission  would  probably  never 
have  been  accomplished  but  for  the  existence  of  an  agency  which  pro- 
vided for  the  initial  and  experimental  stages  of  these  two  important 
National  scientific  projects.  Indeed,  so  obviously  practical  a  thing  as 


432  AMERICAN   FEDERAL   GOVERNMENT 

scientific  agriculture  was  promoted  by  the  Smithsonian  Institution  in 
conjunction  with  the  Commissioner  of  Patents,  in  the  days  when  Con- 
gress had  not  yet  seen  its  way  clear  to  take  this  up. 

It  is  not  to  be  doubted  that  the  philosophical  workers  of  the  United 
States  will  in  the  future  recognize  as  the  two  dominant  factors  which 
produced  the  National  scientific  activity,  first,  the  practical  need  of  the 
Government  for  expert  work  in  every  department,  and  second,  the  estab- 
lishment of  the  Smithsonian  Institution,  which,  without  violating  the 
political  consciences  of  our  statesmen,  enabled  them  to  provide  the  means 
for  scientific  work  whose  ultimate  economic  importance  has  proven  of 
the  highest  value  to  the  Nation. 

Such  and  so  numerous  are  the  scientific  bureaus  of  the  Government 
that  it  has  seemed  impossible,  in  this  brief  space,  to  do  more  than  cata- 
logue them,  though  each  would  become  an  interesting  study  if  treated 
in  detail,  which  would  occupy  a  volume  rather  than  an  article. 


SPECIAL    AGENTS 

[The  numerous  new  functions  which  the  federal  administrative  departments 
have  recently  been  undertaking  call  for  a  body  of  highly  trained  and  able 
officials.  Although  the  rank  and  file  of  the  clerical  force  in  the  departments 
must  chiefly  be  relied  on  for  the  performance  of  this  work,  there  have  also 
been  employed  a  great  number  of  special  agents  for  the  purpose  of  conducting 
investigations  and  supplying  specific  information.  This  matter  is  discussed 
in  the  following  speech  of  Mr.  J.  A.  Tawney.J 

SPEECH  OF  REPRESENTATIVE  JAMES  A.  TAWNEY  ON  THE  LEGIS- 
LATIVE APPROPRIATION  BILL  * 

MR.  TAWNEY  said: 

Mr.  Chairman:  This  bill  carries  appropriations  for  the  expenses  of 
the  legislative,  executive,  and  judicial  branches  of  the  Federal  Govern- 
ment for  the  next  fiscal  year.  It  abolishes  308  places  now  provided  for 
by  law,  carrying  salaries  aggregating  $360,360.25.  It  creates  243  new 
places  and  appropriates  salaries  therefor  aggregating  $276,324.  It 
reduces  64  salaries  for  positions  now  provided  and  appropriated  for  by 
law  aggregating  $8,400,  and  increases  104  salaries,  the  aggregate  increase 
equaling  $16,930.  In  a  word,  therefore,  the  net  reduction,  as  will  be 
seen  from  these  figures,  made  by  this  bill  on  account  of  positions  and 
salaries  abolished  and  reduced  is  $76,506.25. 

These  facts  and  figures  ought  to  convince  this  House  that  your  Com- 
mittee on  Appropriations  has  not  neglected  its  duty  in  respect  to  inquir- 
ing into  the  condition  of  the  public  service  in  the  respective  Departments 

1    Congr.  Record,  March  19,  1906. 


THE   DEPARTMENTS  433 

of  the  Government,  and  also  into  the  necessity  for  positions  now  exist- 
ing or  which  the  Departments  ask  to  have  created  and  the  salaries  which 
ought  to  be  provided  for  the  positions  thus  created. 

I  listened  with  much  interest  to  the  remarks  of  the  gentleman  from 
Maine  [Mr.  Littlefield]  last  Friday,  when  he  presented  to  the  House  and 
to  the  country  facts  tending  to  show  the  marvelous  increase  in  the  salaries 
and  in  the  number  of  positions  during  the  last  eight  years. 

From  his  statement  it  appears  that  from  1888  up  to  and  including  1898 
the  average  annual  increase  in  salaries  aggregates  about  $2,000,000,  and 
that  the  average  annual  increase  in  salaries  since  that  time  has  been  about 
$11,000,000.  While  the  gentleman  from  Maine  [Mr.  Littlefield]  did  not 
seek  to  convey  to  the  House  the  impression  that  the  Committee  on  Appro- 
priations was  responsible  for  these  increases,  both  in  salaries  and  in 
positions,  I  fear  that  his  remarks  may  have  left  upon  the  minds  of  many 
Members  the  impression  that  such  is  the  case. 

I  therefore  desire,  Mr.  Chairman,  to  call  attention  to  the  fact  that 
there  are  two  principal  causes  for  these  increases.  One  is  the  creation  of 
the  Department  of  Commerce,  with  an  aggregate  expenditure  for  salaries 
for  the  fiscal  year  1905  of  $2,142,739.84.  The  other  is  the  establishment 
of  the  rural  free-delivery  service,  increasing  salaries  annually  to  the  ex- 
tent of  $20,480,000.  Both  of  these  causes  have  occurred  since  the  date 
mentioned  by  the  gentleman  from  Maine.  When  you  deduct  the  in- 
creases made  necessary  by  these  two  facts,  together  with  some  increases 
demanded  by  laws  enacted  by  Congress,  you  will  find  that  the  average 
increase  in  both  positions  and  salaries  since  1898  created  and  carried  in 
the  appropriation  bills  does  not  exceed  to  any  material  extent  the  average 
increase  in  both  positions  and  salaries  prior  to  that  time. 

But,  Mr.  Chairman,  it  is  nevertheless  a  fact,  one  that  is  well  known 
to  every  Member  of  this  House  who  has  had  any  extended  service,  that 
in  the  enactment  of  legislation  by  Congress  there  is  altogether  too  little 
attention  paid  to  the  consequent  increase  in  both  salaries  and  positions 
for  which  appropriations  must  thereafter  be  made.  It  is  Congress, 
therefore,  and  not  the  Committee  on  Appropriations  that  must  assume 
responsibility  for  originating  practically  all  the  increases  in  the  past,  for 
when  a  law  passed  by  Congress  authorizes  any  of  the  Executive  Depart- 
ments to  undertake  a  new  work  or  to  undertake  a  new  investigation 
which  involves  a  vast  amount  of  labor  and  a  large  number  of  Govern- 
ment employees,  there  is  thereby  created  a  necessity  for  additional  ex- 
pense, additional  positions  and  increases  in  salaries  for  which  that 
Department  will  submit  to  Congress  its  estimates,  and  thereupon  the 
Committee  on  Appropriations  has  no  alternative  except  to  report  ap- 
propriations for  the  purpose  of  meeting  this  additional  expense. 

I  am  glad,  sir,  that,  as  I  have  heretofore  said,  the  present  appropriation 
bill  is  not  open  to  this  criticism.  It  is  the  first  one  I  believe  that  the 
Committee  on  Appropriations  has  reported  in  about  ten  years  which 

28 


434  AMERICAN  FEDERAL   GOVERNMENT 

has  not  carried  an  aggregate  increase  in  salaries  and  positions  greater 
than  the  last  preceding  appropriation  bill  or  the  current  law. 

I  was  therefore  very  glad  to  observe  the  independent  investigation 
and  inquiry  which  the  gentleman  from  Maine  [Mr.  Littlefield]  has  given 
to  the  subject-matter  of  the  appropriation  bill  now  under  consideration 
and  to  the  subject-matter  of  the  same  bill  reported  and  enacted  in  previ- 
ous Congresses.  If  other  Members  would  exercise  their  right  and  their 
privilege  in  a  similar  way,  and  devote  time  to  the  investigation  and 
inquiry  into  the  expenditure  of  public  money  and  into  the  estimates 
submitted  by  the  Departments,  I  feel  confident  that  it  would  be  of  ma- 
terial benefit  to  the  House  and  of  great  advantage  to  the  Government 
and  to  the  people.  It  would  tend  to  prompt  committees  having  jurisdic- 
tion of  appropriation  bills  to  be  more  careful  in  their  investigation,  more 
searching  in  their  inquiries  into  the  estimates  submitted,  and  when  their 
bills  come  before  the  House  there  would  be  less  occasion  and  less  justifi- 
cation for  the  superficial  criticism  which  is  so  frequently  indulged  in  upon 
this  floor. 

Mr.  Chairman,  I  have  realized  for  some  time  that  the  Federal  Govern- 
ment was  rapidly  increasing  its  police  supervision  throughout  the  entire 
country.  I  have  realized  to  some  extent  that  we  were  rapidly  assuming 
control  and  general  supervision  of  the  domestic  affairs  of  the  people  of 
the  States  in  the  doing  of  that  which  belongs  peculiarly  to  the  States. 
But,  sir,  not  until  I  came  to  examine  the  estimates  of  the  several  Depart- 
ments of  the  Government  for  appropriations  for  the  next  fiscal  year  did 
I  have  any  conception  of  the  rapidity  with  which  this  extension  of  the 
Federal  policing  and  Federal  supervision  of  the  domestic  affairs  of  the 
people  of  the  States  was  growing  and  being  extended.  For  the  purpose 
of  ascertaining  with  some  degree  of  certainty  the  extent  to  which  the 
power  of  the  Federal  Government  in  this  respect  has  been  extended,  I 
have  ascertained  from  all  the  Executive  Departments  of  the  Govern- 
ment the  growth  of  the  inspection  and  general  agents  service  during  the 
past  decade.  I  selected  this  branch  of  the  public  service  for  the  purpose 
of  ascertaining  the  extent  of  the  growth  of  the  centralization  of  Federal 
power  and  the  extent  to  which  the  Federal  Government  is  engaging  to- 
day in  the  work  of  doing  that  which  belongs  peculiarly  to  the  States.  I 
have  done  this  because  it  is  through  that  service  that  this  power  is 
exercised  to  a  greater  extent  than  through  any  other  branch  of  the 
public  service.  In  the  statement  I  have  prepared  and  will  submit  as 
a  part  of  my  remarks  I  have  separated  this  service  and  given  each 
branch  of  the  inspection  and  special-agent  service  of  each  Department 
separately. 

An  examination  of  this  statement  shows  the  total  number  of  inspectors 
and  special  agents  employed  in  the  public  service  in  1896,  the  aggregate 
amount  appropriated  for  that  service,  and  also  the  aggregate  number 
who  were  employed  in  that  service  in  1906  and  the  aggregate  appropria- 


THE   DEPARTMENTS 


435 


DATA  CONCERNING  AGENTS,  INSPECTORS,  EXAMINERS,  ETC. 


1896 

I9O6 

Title 

Where  employed 

Num- 

Compensa- 

Num- 

Compensa- 

ber 

tion 

ber 

tion 

Special  agents,  etc. 

Bureau  of  Labor  . 

20 

$28,400.00 

40 

$57,200.00 

Special  agents     .    . 

Census  Office    .    . 

735 

500,000.00 

Examiners  and  spe- 

Department      of 

cial  agents  ... 

Justice    .... 

ii 

27,500.00 

20 

45,220.00 

Special  agents   and 

inspectors    .    .    . 

Treasury    .... 

149 

257,927.00 

168 

315,827.50 

Suppressing     coun- 

terfeiting        and 

other  crimes    .    . 

Treasury    .... 

65,000.00 

125,000.00 

Mine  inspectors  .    . 

Interior      Depart- 

ment     .... 

3 

6,000.00 

2 

4,000.00 

Inspectors,      exam- 

iners, and  special 

agents      .... 

do. 

67 

96,985.00 

120 

180,728.50 

Special  examiners  . 

Pension  Office  .    . 

15° 

195,000.00 

I25 

162,500.00 

Inspectors    .... 

Indian  Affairs    .    . 

32 

72,260.00 

38 

85,075.00 

Inspectors,        mail 

Post     Office     De- 

108 

176,400.00 

226 

368,150.00 

depredations    .    . 

partment. 

Agents 

Alaskan  seal    fish- 

A 

12  Q^O.OO 

12  Q^O.OO 

eries. 

Do 

Salmon  fisheries 

2 

7  ooo.oo 

Do                    .    . 

Rural  free  delivery 

167 

227   TOO.OO 

Special  agents     .    . 

Department         of 

.... 

/ 

4 

12,520.00 

Commerce    and 

Labor. 

Do  

do. 

3.1 

62    1^2  .OO 

Inspectors    .... 

Bureau    of   Immi- 

91 

128,504.00 

o* 

454 

664,665.00 

gration. 

Do 

Steamboat-Inspec- 

T 72 

16? 

7.  1  I    8OO.OO 

tion  Service. 

*a* 

' 

*  •  5 

Assistant     superin- 

Post    Office     De- 

4 

6,400.00 

39 

7O,2OO.OO 

tendents          and 

partment. 

agents. 

Agents,    inspectors, 

Agricultural      De- 

1 60 

.... 

773 

iiSSSt^o-oo1 

etc. 

partment. 

Total 

O  7  I 

T    7  T  C    C  26  OO 

3T  T  7 

4  ^67  728.00 

Vo  A 

*-1J     J*J 

t1  AO 

1  Amount  from  which  authority  is  given  to  employ  agents,  inspectors,  etc. 

436  AMERICAN   FEDERAL   GOVERNMENT 

tions  therefor.  From  this  statement  it  will  be  observed  that  since  1896, 
or  in  the  last  decade,  the  number  of  special  agents  and  experts  in  the 
Bureau  of  Labor  has  increased  100  per  cent,  and  the  amount  expended 
for  this  service  has  likewise  increased  about  100  per  cent.  It  will  also 
be  observed  that  the  increase  in  the  number  of  inspectors,  examiners, 
and  special  agents  of  the  Interior  Department  during  the  last  decade  has 
increased  79  per  cent,  and  the  amount  of  the  expenditure  for  that  service 
has  increased  86  per  cent,  while  we  have  increased  the  number  of  ex- 
aminers, inspectors,  etc.,  by  the  establishment  of  the  Department  of 
Commerce  and  Labor,  in  addition  to  the  increases  in  the  bureaus  which 
were  taken  into  that  Department,  to  the  extent  of  thirty-five. 

The  most  notable  increase,  perhaps,  will  be  found  in  the  Department 
of  Agriculture,  where  in  1896  they  had  only  160  inspectors,  special  agents, 
etc.,  and  in  1906  they  have  773.  The  total  number  of  special  agents  and 
inspectors  employed  by  the  Government  in  the  field  and  outside  of  the 
District  of  Columbia  in  1896  was  931,  while  the  total  number  in  1906 
employed  for  that  service  is  3,113,  an  increase  of  383  per  cent.  In  1896 
we  were  expending  for  this  special-agent  and  inspection  service  only 
$1,315,526,  while  to-day,  ten  years  thereafter,  we  are  appropriating 
$4,567,728. 

Another  remarkable  fact  which  will  be  observed  from  this  statement 
and  which  proves  the  rapid  growth  and  extension  of  Federal  control 
over  the  domestic  affairs  of  the  people  of  the  States  is  the  fact  that 
although  our  revenue  increased  during  the  past  decade  74  per  cent  the 
increase  in  the  number  of  revenue  agents,  inspectors,  and  customs  col- 
lectors and  agents  has  been  only  13  per  cent  and  the  amount  appropriated 
for  this  service  has  increased  only  22  per  cent.  The  same  small  increase 
is  true  in  all  of  the  other  Departments  of  the  Government  where  this 
inspection  service  is  employed  legitimately  for  the  benefit  of  the  Govern- 
ment and  for  the  purpose  of  collecting  the  revenue  and  protecting  from 
fraud  the  interests  of  the  Government  when  those  interests  require  pro- 
tection. The  enormous  increase  in  this  service,  as  shown  by  this  state- 
ment, is  in  those  Departments  of  the  Government  which,  under  authority 
of  law,  have  to  deal  with  the  affairs  of  the  States  or  the  people  of  the 
States,  and  much  of  this  Federal  service  is  rendered  in  conjunction  with 
the  States,  or,  as  it  is  so  commonly  called,  "  Federal  cooperation  with 
the  States,"  in  the  doing  of  that  which  belongs  exclusively  to  the  States. 
It  must  be  borne  in  mind,  too,  that  when  a  service  of  this  kind  is  estab- 
lished or  extended  it  at  the  same  time  involves  a  very  large  increase  in 
the  administrative  force  of  the  Department  which  is  charged  with  the 
duty  and  responsibility  of  conducting  the  work  or  carrying  on  the  service 
thus  required. 

I  call  attention  to  these  facts,  Mr.  Chairman,  in  the  hope  of  arresting 
the  attention  of  Congress  and  the  country  to  the  marvelous  growth 
during  the  past  decade  of  a  service  which,  if  continued  on  the  demand 


THE   DEPARTMENTS  437 

of  the  people  as  they  have  demanded  in  the  past,  will  in  the  near  future 
necessitate  the  expenditure  of  enormous  sums  from  the  Federal  Treasury, 
pauperize  the  power  of  the  States,  obliterate  the  rights  of  the  States, 
leaving  the  question  only  of  State  dependence  or  independence. 

Mr.  Chairman,  we  are  directly  responsible  to  the  people  for  the  money 
we  are  authorizing  administrative  officers  to  expend.  It  is  theirs,  not 
ours.  These  officers  may  justify  their  failure  to  comply  with  the  law  on 
the  ground  of  sympathy,  influence,  or  because  of  political  pressure,  but 
that  excuse  does  not  serve  to  relieve  any  Member  of  this  House  from  his 
individual  responsibility  in  respect  to  the  appropriation  of  money  for  the 
public  service  or  for  any  other  purpose.  The  discharge  of  this  duty 
demands  labor,  time,  and  thorough  investigation  into  all  the  intricate 
and  minute  details  of  departmental  administration.  The  Committee 
on  Appropriations  devoted  five  weeks  to  the  investigation  of  this  service 
and  to  a  most  careful  inquiry  into  the  estimates  of  the  respective  depart- 
ments concerning  their  needs  for  the  coming  fiscal  year.  I  am  free  to 
say,  Mr.  Chairman,  not  having  had  any  previous  experience  on  the  Com- 
mittee on  Appropriations,  and  like  most  Members,  having  paid  less  at- 
tention to  the  subject  than  perhaps  I  ought  to  have  done,  that  I  was 
amazed  at  many  of  the  disclosures  revealed  by  that  investigation.  I  do 
not  insinuate  or  intimate  that  there  is  to-day  or  that  there  has  been  any 
corrupt  practices  on  the  part  of  any  administrative  officer  of  the  Govern- 
ment; but  I  was  surprised  to  find  that  the  heads  of  the  administrative 
departments  of  the  Government  pay  so  little  attention  to  the  details  of 
the  service  in  their  respective  Departments.  I  realize  that  they  all  have 
grave  and  enormous  responsibilities  in  connection  with  the  work  of  their 
Departments  and  the  policies  they  must  inaugurate  and  carry  out,  but 
at  the  same  time  the  discretion  necessarily  vested  in  them  by  law  is 
delegated  to  subordinate  officers  and  clerks,  who  are  not  directly  re- 
sponsible to  Congress,  to  a  degree  utterly  inconsistent  with  good  ad- 
ministration. The  investigation  shows  that  these  heads  of  bureaus  and 
chiefs  of  divisions,  in  almost  every  instance,  are  as  susceptible  to  sym- 
pathy and  influence  as  their  superiors.  The  result  is  that  when  Congress 
says  that  a  clerk,  who  is  inefficient  for  any  cause,  shall  be  dismissed,  the 
duty  of  reporting  the  fact  of  inefficiency  has  been  delegated  to  the  chief 
of  the  division  in  which  that  clerk  is  employed.  Because  of  his  intimate 
relation  to  the  clerk  or  because  of  favoritism  that  chief  is  not  so  apt  to 
enforce  the  law  as  he  would  be  if  it  were  practical  for  the  departmental 
head  himself  to  ascertain  the  question  of  efficiency  or  inefficiency.  Hence 
we  are  told  that  one  reason  why  this  provision  of  law  is  not  enforced  is 
the  fact,  first,  that  they  have  not  ordinarily  the  jieart  to  turn  these  old 
people  out,  and,  second,  if  they  had,  they  are  not  reported  to  them  as 
being  inefficient,  and  therefore  the  evidence  is  not  before  them  which 
requires  them  to  do  so. 

In  the  Library  of  Congress  the  Librarian  informed  the  committee  that 


438  AMERICAN   FEDERAL   GOVERNMENT 

there  was  one  man  there  over  70  years  of  age,  totally,  or  almost  totally, 
incapacitated  for  the  discharge  of  his  duties.  When  the  Librarian  was 
asked  why  he  did  not  dismiss  him  he  informed  the  committee  that  he 
could  not.  Well,  why  not  —  who  is  behind  him  ?  And  immediately  the 
answer  came,  "  Chief  Justice  Taney."  Further  inquiry  elicited  the  fact 
that  out  of  respect  for  the  memory  of  Chief  Justice  Taney,  who  appointed 
this  man  in  the  Library  many  years  ago,  the  Supreme  Court  of  the  United 
States  insists  upon  his  retention. 

The  Secretary  of  the  Interior  cited  several  instances  of  a  similar  char- 
acter. The  Secretary  of  War  informed  the  committee  that  it  was  practi- 
cally impossible  for  any  head  of  a  Department  to  enforce  that  law,  not 
alone  because  of  his  sympathy  for  the  clerk  who  had  arrived  at  that  age 
when  he  or  she  was  no  longer  capable  of  rendering  efficient  services, 
but  also  because  of  the  pressure  brought  to  bear  by  Members  of  Con- 
gress and  Senators  and  other  public  officials  in  order  to  continue  the 
employment  of  that  particular  clerk.  This  is  not  a  condition,  gentle- 
men, peculiar  to  this  Administration.  It  is  a  condition  that  has  obtained 
in  all  Administrations,  and  it  will  always  obtain  under  our  present  system. 
It  is  for  this  reason  that  the  Congress  of  the  United  States  must  enact  an 
arbitrary  law,  whereby  presumptive  inefficiency  resulting  from  age  must 
be  accepted  as  sufficient  cause  for  separation  from  the  public  service. 

In  this  investigation,  Mr.  Chairman,  there  are  several  matters  of  ad- 
ministration that  the  committees  thought  ought  to  be  remedied.  First 
let  me  call  your  attention  to  the  fact  disclosed  in  the  hearings,  that  the 
Departments  of  Government  are  competing  with  one  another  for  clerical 
service,  a  condition  that  has  grown  out  of  the  increases  in  salaries  of 
certain  clerks  in  certain  Departments  doing  identically  the  same  char- 
acter of  work.  One  chief  of  a  bureau,  the  Bureau  of  Standards,  informed 
us  that  in  the  last  two  years  it  has  been  impossible  for  him  to  keep  a 
stenographer  and  typewriter  in  his  Bureau  much  more  than  six  months. 
Why  ?  He  informed  the  committee  that  by  the  time  the  clerk  had  served 
six  months,  or  a  little  more,  he  discovered  that  in  the  Treasury  Depart- 
ment they  were  paying  higher  salaries  for  clerks  doing  identically  the 
same  work,  and  as  soon  as  there  was  a  vacancy  in  the  Treasury  Depart- 
ment he  would  ask  for  a  transfer.  The  chief  of  that  Bureau  says  he 
has  not  the  heart  to  refuse  to  consent  to  his  transfer  when  he  is  told  the 
clerk  can  better  his  condition  by  transfer  to  the  extent  of  from  three  to 
four  hundred  dollars  a  year. 

This  practice,  Mr.  Chairman,  leads  to  a  demoralization  of  the  public 
service.  The  complaint  is  so  universal  on  the  part  of  the  heads  of  De- 
partments that  your  committee  has  deemed  it  necessary  to  report  a 
provision  prohibiting  the  transfer  of  clerks  from  one  Department  to 
another  until  the  clerk  has  served  in  the  Department  from  which  he 
asks  to  be  transferred  at  least  three  years.  I  am  informed  by  the  heads 
of  Departments  and  bureau  chiefs  that  from  the  standpoint  of  the  public 


THE   DEPARTMENTS  439 

service  this  provision  will  be  of  great  value.  It  will  not  only  tend  to 
produce  greater  contentment  among  the  clerks,  but  will  also  tend  toward 
an  equalization  of  compensation  for  the  same  general  character  of  work. 
The  other  provision  which  has  been  reported,  and  which  has  been 
commented  on  more  or  less  in  the  general  debate  and  in  the  public  press 
of  this  city,  is  the  provision  respecting  super-annuation  in  the  Executive 
Departments  and  governmental  establishments  in  the  District  of  Colum- 
bia. That  some  legislation  is  necessary  on  this  subject  I  think  every 
Member  of  this  House  admits.  It  is  a  subject  that  has  commanded 
more  or  less  of  attention  on  the  part  of  Congress  ever  since  I  have  been 
a  Member  of  this  body. 


THE   WORK   OF   THE   KEEP    COMMISSION1 

IN  constituting  the  Committee  on  Departmental  Methods,  somewhat 
more  than  two  years  ago,  President  Roosevelt  chose  five  of  the  younger 
officials  of  the  civil  service,  each  one  of  whom  already  had  a  reputation  for 
administrative  ability  and  breadth  of  view.  These  men  were  named: 
Hon.  Charles  A.  Keep,  Assistant  Secretary  of  the  Treasury ;  Hon.  Frank 
H.  Hitchcock,  First  Assistant  Postmaster- General;  Hon.  Lawrence  O. 
Murray,  Assistant  Secretary  of  Commerce  and  Labor;  Hon.  James  R. 
Garfield,  at  that  time  chief  of  the  Bureau  of  Corporations,  but  since  ap- 
pointed Secretary  of  the  Interior,  and  Hon.  Gifford  Pinchot,  Chief  of  the 
Forest  Service. 

The  Commission  was  directed  by  the  President  to  ascertain  where  and 
in  what  respects  our  present  Government  methods  fall  short  of  the  best 
business  standards  of  to-day  and  to  recommend  measures  of  reform. 

The  commission  carefully  selected  seventy  employees  of  the  Govern- 
ment, with  varied  experience,  and  formed  them  into  sub-committees, 
which  were  used  as  probes  to  search  the  innermost  recesses  of  the  ad- 
ministrative machinery  and  discover  the  actual  existing  conditions.  The 
committees  made  close  inquiry  into  every  condition  and  every  phase  of 
work  connected  with  the  service,  and  the  resultant  reports  and  recom- 
mendations exhaustively  cover  the  ground,  from  sanitation  of  offices  to 
making  of  Government  contracts. 

The  remedial  recommendations  of  the  commission  have  almost  all  met 
with  the  approval  of  the  President,  and,  where  the  authority  of  legislation 
is  not  necessary,  they  have  been  put  into  effect  with  as  little  delay  as  pos- 
sible, so  that  this  reform  movement  has  been  in  active  operation  for  two 
years  and  has  advanced  a  long  way  toward  the  contemplated  consumma- 
tion. When  the  desired  action  of  Congress  has  been  secured  the  execu- 
tive branches  of  our  Government  will  be  by  far  the  most  efficient  and 
economical  of  any  in  existence. 

1  From  an  article  by  C.  H.  Forbes-Lindsay  in  the  Review  of  Reviews,  Febr.,  1908. 


440  AMERICAN  FEDERAL   GOVERNMENT 

A  brief  review  of  a  few  of  the  subjects  treated  by  the  commission  will 
afford  an  idea  of  the  scope  and  direction  of  the  inquiry  and  of  the  measure 
of  improvement  likely  to  result  from  it. 

PERSONNEL  AND  SALARIES  OF  THE  SERVICE 

The  salaries  now  paid  in  the  departmental  service  in  Washington  are 
based  upon  a  classification  of  the  clerks  made  by  acts  of  Congress  of 
1853  and  1854,  which  graded  the  entire  clerical  force  (except  the  de- 
partments of  State  and  Justice)  into  four  classes.  To-day  there  are  indi- 
vidual bureaus  that  have  more  employees  than  the  entire  departmental 
service  had  in  1853,  and  the  responsibilities  of  their  chiefs  are  incalcu- 
lably greater  than  were  those  of  the  men  who  held  similar  positions  fifty 
years  ago.  Nevertheless,  there  has  never  been  any  attempt  to  reclassify 
the  positions,  or  to  adjust  the  salaries  with  reference  to  these  changed 
conditions,  so  that,  at  the  present  time,  the  most  startling  anomalies  and 
inequities  exist.  Not  only  is  there  a  great  diversity  of  compensation  for 
the  same  kind  of  work,  but  persons  receiving  the  higher  salaries  are 
in  many  cases  rendering  the  simplest  routine  service,  while  others  in 
the  lowest  grades  are  performing  duties  of  the  most  exacting  charac- 
ter. Throughout  the  entire  service  the  relation  of  the  easier  position, 
the  more  difficult  position,  and  the  responsible  supervisory  position 
has  not  for  many  years  been  adequately  distinguished  by  the  salary 
grades. 

The  lower  grades  of  clerical  employees  in  the  Government  service  are 
better  paid  than  the  same  class  in  private  employment.  Nevertheless, 
these  positions  have  been  the  hardest  of  all  to  fill  with  competent  persons. 
In  the  last  fiscal  year,  1462  eligibles  were  offered  positions  at  less  than 
$900  a  year  in  the  departments  at  Washington.  More  than  30  per  cent 
declined,  with  the  serious  consequence  that  it  was  necessary  to  appoint  in 
their  stead  individuals  of  distinctly  inferior  qualifications.  The  effect 
of  this  condition  is  far-reaching,  since  it  is  from  the  lower  grades  that 
the  service  is  built  up.  It  may  be  inferred  that  the  young  man  of  parts, 
who  is  confident  of  his  ability  to  rise  in  the  world,  can  not  be  tempted  by 
the  higher  salary  at  the  outset  of  his  career,  when  it  is  accompanied  by 
prospects  of  promotion  decidedly  limited  as  compared  with  those  offered 
by  commercial  corporations. 

On  the  other  hand,  the  difficulty  experienced  in  securing  properly 
qualified  clerks  for  positions  paying  from  $1000  to  $1500,  and  the  great 
number  of  resignations  from  these  grades,  clearly  indicate  that  the  same 
character  of  service  commands  higher  compensation  in  the  business 
market.  As  to  the  supervisory,  professional,  and  technical  positions, 
they  have  long  been  recognized  as  very  much  underpaid  in  our 
departments. 

These  conditions  have  the  effect  of  attracting  to  the  Government  ser- 


THE   DEPARTMENTS  441 

vice  two  distinct  classes  of  men:  First,  those  who  have  little  ambition 
and  no  stomach  for  the  struggle  of  the  strong,  and  who  find  in  a  Washing- 
ton clerkship  a  peaceful  haven  and  a  modest  competence  for  life.  Second, 
men  actuated  by  public  spirit,  hope  of  political  preferment,  or  desire  to 
do  big  things,  who  are  willing  to  sink  monetary  considerations  for  the 
sake  of  exceptional  opportunities.  Illustrations  of  this  class  are:  As- 
sistant Secretary  of  State  Robert  Bacon;  Mr.  Gifford  Pinchot,  of  the 
Forest  Service;  Dr.  Charles  D.  Walcott,  of  the  Smithsonian  Institution; 
Mr.  Frederick  Newell,  of  the  Reclamation  Service.  In  such  instances 
we  find  men  of  the  highest  administrative  ability  directing  interests 
equivalent  to  the  management  of  a  great  railroad,  on  salaries  of  $4000 
or  $5000  a  year. 

.  The  recommendations  of  the  commission,  which  will  require  Congres- 
sional approval,  contemplate  a  complete  reclassification  of  the  service 
and  a  corresponding  readjustment  of  salaries.  The  proposed  system 
aims  to  attract  a  higher  grade  of  recruits,  by  doing  away  with  the  $50 
and  $60  a  month  clerks  and  making  the  salary  for  the  lowest  grade  $900 
a  year.  Frequent  promotion  is  provided  for,  favoritism  is  guarded 
against,  and  the  ultimate  prospect  is  improved  by  a  suggested  long- 
service  pension  and  life  insurance.  In  the  upper  grades  the  salaries  are 
placed  sufficiently  high  to  develop  and  retain  the  best  executive  and  expert 
service. 

The  commission  estimates  that  these  increases  in  remuneration  will 
entail  no  more  than  10  per  cent  addition  to  the  appropriations  for  sala- 
ries, which  would  represent  an  amount  trivial  in  comparison  with  the 
sum  that  will  be  saved  as  a  result  of  the  economies  already  effected  by  the 
investigation,  and  would  be  further  justified  by  the  higher  class  of  en- 
trants to  the  Government  service  and  the  enhanced  standard  of  efficiency 
that  will  be  maintained  in  every  grade. 

INTRODUCING  UP-TO-DATE  COMMERCIAL  METHODS 

One  of  the  most  important  features  of  latter-day  commercial  account- 
ing is  the  analytical  form  of  bookkeeping,  which  is  styled  "cost-keeping." 
Manufacturing  establishments  employ  it  to  ascertain  in  detail  the  cost 
of  articles  produced ;  railroads  use  it  in  the  analyses  of  their  operating 
expenses,  and  insurance  companies  depend  upon  it  for  statistics  of  the 
general  costs  of  management  and  agency  operation.  States  and  munici- 
palities are  adopting  the  system  with  marked  effect,  and  it  has  proved  to 
be  of  no  less  assistance  in  government  work  than  in  commercial  busi- 
ness. It  will  make  comparison  possible  between  the  operations  of  estab- 
lishments doing  the  same  class  of  manufacturing,  such  as  mints,  arse- 
nals, and  navy  yards.  It  will  enable  the  head  of  a  department  or  bureau 
to  determine  where  economies  may  be  effected  by  introducing  new  ar- 
rangements in  organization,  or  new  methods  in  practice,  to  estimate  more 


442  AMERICAN   FEDERAL   GOVERNMENT 

intelligently  on  the  probable  cost  of  future  operations,  to  make  contracts 
with  closer  calculation,  to  fix  selling  prices  on  products  transferred  to  other 
branches  of  the  Government,  or  sold  to  foreign  governments,  or  to  private 
concerns. 

Cost-keeping,  heretofore  practiced  in  only  two  or  three  recently  organ- 
ized government  bureaus,  will  in  future  be  employed  wherever  benefit 
can  be  derived  from  it,  and  the  resultant  advantages  in  mere  dollars  and 
cents  must  amount  to  millions  every  year. 

In  the  matter  of  accounting,  the  commission  found  even  the  Treasury 
deplorably  behind  the  times.  This  was  one  of  the  first  subjects  investi- 
gated, and  reforms  have  been  in  force  long  enough  to  show  the  most 
markedly  beneficial  effects.  As  examples:  The  Treasury,  which  for- 
merly only  balanced  its  books  once  a  year,  at  the  expenditure  of  a  great 
deal  of  time  and  trouble,  now  has  a  double-entry  system  of  bookkeeping 
in  force  which  enables  it  to  strike  a  true  balance  at  the  close  of  each  day's 
work.  The  account  of  the  disbursing  officer  at  New  York,  which  used 
to  take  six  months  to  make  out,  is  now  completed  in  two  weeks.  In  a 
certain  branch  of  the  Government,  where  large  and  numerous  financial 
transactions  are  carried  on,  the  officials,  who  were  accustomed  to  take 
ninety  days  to  render  an  account,  are  now  ready  to  do  so  daily.  If  a  dis- 
bursing officer  makes  his  last  payment,  for  instance,  at  ten  o'clock  in  the 
morning,  he  can  give  a  complete  account  of  his  affairs  at  noon  of  the 
same  day.  The  Auditor  of  the  Treasury,  who  has  been  in  the  habit,  — 
and  necessarily  so  under  the  old  system,  —  of  settling  disbursing  officers' 
accounts  largely  on  faith,  now  has  all  the  checks  and  vouchers  before  him 
with  which  to  verify  them. 

These  improvements,  be  it  understood,  have  not  been  achieved  by  any 
increase  of  the  machinery.  They  are  simply  the  results  of  better  system, 
attained  with  less  labor  than  was  expended  on  the  antiquated  and  cum- 
bersome methods  which  have  been  abolished. 


NEEDED  REFORMS  IN  THE  PURCHASE  OF  SUPPLIES 

It  would  naturally  be  supposed  that  in  an  institution  purchasing  sup- 
plies in  such  enormous  quantities  as  does  our  Government  the  patent 
opportunities  for  economy  and  standardization  would  be  embraced. 
Such  has  not,  however,  been  the  case.  Each  department,  —  and,  in 
cases,  a  separate  bureau  or  division,  —  advertises  independently  for 
what  it  needs,  and  contracts  at  a  price  without  knowledge  or  regard  for 
what  the  same  goods  are  costing  other  branches  of  the  Government  or 
private  corporations.  A  certain  mucilage  costs  one  department  $1.84  per 
dozen  quarts  and  another  $3  per  dozen  quarts.  The  prices  of  the  same 
make  of  pencils  range  from  $2.27  per  gross  to  $3.36  per  gross.  The  cost 
of  ice  varies  from  13  to  30  cents  per  100  pounds,  and  no  two  departments 
contract  for  coal  at  the  same  figures.  It  should  be  borne  in  mind  that  arti- 


THE   DEPARTMENTS  443 

cles  of  small  unit  value  are  consumed  in  quantities  that  represent  hun- 
dreds of  thousands  of  dollars,  and  the  aggregate  bills  of  the  Government 
for  such  ordinary  supplies  run  into  the  millions  yearly. 

No  attempt  whatever  has  been  made  to  standardize  supplies,  so  that 
133  varieties  of  pencils,  28  kinds  of  ink,  263  different  styles  of  pen-points, 
and  all  sorts  of  typewriter  ribbon,  are  used  in  the  various  government 
offices.  Hardly  any  check  is  placed  upon  waste  or  peculation.  It  would 
seem  that  every  employee  of  the  Government  in  Washington,  from 
cabinet  minister  to  colored  messenger,  uses  twenty-three  pencils  each 
month,  or,  say,  a  total  of  7,000,000  pencils  a  year,  at  a  cost  of  $150,000. 

A  bill  to  provide  for  the  betterment  of  these  conditions  was  introduced 
at  the  last  session  of  Congress,  but  it  was  blocked  in  the  Senate.  How- 
ever, in  case  the  opposition  to  the  measure  continues  in  the  present  Con- 
gress, the  Keep  Commission  has  devised  a  plan  which  will  make  for  a 
great  improvement  in  the  purchase  of  supplies.  An  inter-department 
committee  is  suggested  which  shall  insure  uniformity  in  prices,  and,  with 
the  cooperation  of  the  Bureau  of  Standards,  shall  establish  standards  of 
quality  and  test  goods  furnished  under  contract. 

RESULTS  IN  EFFICIENCY  AND  ECONOMY 

There  are  many  phases  of  the  commission's  work,  and  highly  impor- 
tant ones,  which  it  is  impossible  to  notice  in  the  limits  of  this  article.  The 
changes  effected  and  suggested  seem  to  be  in  almost  every  case  adequate 
and  practicable.  They  must  result  in  vast  improvement  of  service  and 
enormous  economy  of  administration.  These  are  more  than  ever  im- 
portant considerations  in  this  day,  when  modern  civilization  demands  of 
Government  an  ever  increasing  service  and  the  exercise  of  entirely  new 
functions. 

Of  course,  it  is  impossible  to  make  a  precise  statement  of  the  amount 
of  saving  in  money,  or  of  the  degree  of  improvement  in  service  that  may 
be  expected  to  result  from  the  labors  of  the  Keep  Commission,  but  a  few 
concrete  illustrations  will  afford  the  basis  for  a  general  idea  on  both 
points.  Careful  inquiry  among  chiefs  of  bureaus  and  divisions  elicited 
the  assurance  that  in  a  great  majority  of  cases  they  anticipate  at  least 
doubled  efficiency,  and  economies  averaging  30  per  cent  of  former 
expenditures. 

The  Interior  Department  has  almost  completed  a  thorough  reorgani- 
zation. There  were  formerly  a  number  of  divisions  through  which  all 
correspondence  and  matters  for  the  consideration  of  the  Secretary  passed 
and  were  prepared  for  his  action.  The  system  involved  serious  delays 
and  a  great  amount  of  unnecessary  labor.  There  were  other  divisions,  — 
one  to  furnish  documents,  another  stationery,  a  third  furniture,  and  so  on, 
—  which  have  all  been  consolidated,  with  important  saving  in  work  and 
expense.  In  the  Land  Office  the  increase  in  efficiency  is  incalculable,  — 


444  AMERICAN   FEDERAL   GOVERNMENT 

certainly  several  hundred  per  cent,  —  and  the  saving  in  administration 
will  be  $500,000  a  year.  The  estimate  for  the  Secretary's  office  proper 
is  $40,000  less  than  last  year,  despite  the  fact  that  the  business  to  be  done 
is  greater.  The  work  of  the  department  is  performed  in  less  than  half  the 
time  it  used  to  consume,  and  the  task  of  improvement  is  still  in  progress. 

Public  printing  offers  a  good  illustration  of  decrease  in  expenditures 
accompanied  by  improved  service.  A  member  of  the  cabinet  once  said 
to  the  writer:  " If  an  official  wants  to  hide  something  effectually  from  the 
public  he  cannot  do  better  than  put  it  in  his  annual  report.  No  one  will 
ever  see  it."  This  jest  is  almost  a  literal  truth.  The  reports  have  been 
cumbersome  and  repellent.  They  contained  repetitions  of  the  same 
matter,  scientific  treatises,  general  discussions,  philosophical  reflections, 
biographies  and  eulogies,  and,  in  short,  irrelevant  and  redundant  matter 
of  all  kinds,  and  illustrations  that  had  no  excuse  for  their  presence.  In 
compliance  with  an  executive  order,  the  current  reports  have  been  re- 
stricted to  pertinent  subjects  and  are  free  from  the  objectionable  features. 
They  are,  in  consequence,  much  more  useful,  and  have  cost  $200,000  less 
than  usual. 

An  enormous  quantity  of  utterly  useless  printed  material  for  which  no 
demand  existed  has  been  issued  by  the  Government  yearly.  In  the  past 
ten  years  800,000  duplicate  volumes  have  been  returned  to  the  Superin- 
tendent of  Documents,  and  he  has,  for  lack  of  storage  facilities,  declined 
the  return  of  several  hundred  thousand  more.  And  these  figures  relate 
solely  to  duplication  in  distribution  to  libraries  and  take  no*  account  of 
similar  waste  in  the  distribution  to  individuals.  How  great  that  has  been 
may  be  inferred  from  the  experience  gained  in  the  issue  of  two  recent 
publications  where  the  usual  method  was  departed  from.  By  taking 
care  to  prevent  more  than  one  copy  going  to  the  same  individual  a  saving 
of  85,000  volumes  was  effected  in  these  cases  alone. 


THE  DEPARTMENTS  445 


ADMINISTRATIVE  TRIBUNALS  AND   REGULATIONS1 

[As  the  administration  of  the  United  States  government  comes  in  closer 
touch  with  the  people  and  as  the  functions  of  the  administrative  departments 
increase,  the  citizens  will  be  more  directly  affected  by  the  adjudications  of  the 
administrative  bodies  and  by  the  regulations  which  are  imposed  by  adminis- 
trative authorities.  The  whole  movement  is  indicative  of  a  general  change  of 
American  attitude  toward  government  in  its  relation  to  the  general  life  of  the 
country  and  to  the  individual.  From  the  spirit  in  which  our  earlier  constitu- 
tions were  framed,  with  their  explicit  restriction  of  governments,  to  the 
present  readiness  for  supervision,  regulation,  and  general  administrative 
expansion  is  a  significant  change.] 

IN  the  United  States  we  have  a  body  of  administrative  tribunals,  not 
courts,  whose  decisions  are  in  many  instances  as  final  as  those  of  the 
regular  judicial  establishments.  They  limit  liberty  and  control  prop- 
erty; and  in  the  matters  in  which  their  decisions  are  final,  the  day  in 
court  becomes  a  day  in  the  presence  of  administrative  authorities  only. 
And  numerous  as  are  our  courts,  the  body  of  our  administrative  tribu- 
nals is  perhaps  larger.  Under  a  strict  definition  they  may  be  num- 
bered by  the  scores,  under  a  more  liberal  definition  by  the  hundreds. 
Though  they  are  not  dignified  by  the  formal  recognition  which  has  been 
accorded  to  the  administrative  tribunals  of  France,  Germany  and  Aus- 
tria, their  power  is  in  some  matters  even  more  substantial. 

The  administrative  tribunals.  —  The  administrative  authorities  in  the 
United  States  which  have  powers  of  adjudication,  or  of  discretionary 
determination,  have  usually  been  termed  tribunals  rather  than  courts. 
This  term  has  been  employed  by  the  president,  the  circuit  court  of  ap- 
peals, officers  of  the  department  of  justice  and  writers  on  administrative 
law  here  and  abroad.  But  the  American  administrative  tribunal, 
because  of  the  rank  growth  of  the  law  on  which  it  depends,  is  generally 
a  thing  of  indefinite  outlines.  In  a  broad  —  and,  it  must  be  confessed, 
loose  —  sense  the  term  "tribunal"  may  be,  and  has  been,  applied  to  all 
administrative  officers  exercising  discretionary  powers.  If  we  use  the 
term  in  this  sense,  then  the  administrative  tribunals  in  the  state  and 
national  governments  are  manifold  in  number  and  type.  But  there  is  a 
narrower  usage  —  yet  still  an  indefinite  usage  —  which  applies  it  only 
to  administrative  authorities  which  either  in  their  procedure,  their  con- 
stitution or  their  powers,  or  in  one  or  more  of  these  matters,  closely  re- 
semble courts  of  general  jurisdiction.  It  is  rather  with  the  latter  class 
that  we  are  here  concerned,  for  while  the  former  is  well  known,  in  connec- 
tion with  the  law  of  public  officers,  the  latter  has  scarcely  a  niche  in  our 
accepted  legal  classification. 

1  "  American  Administrative  Tribunals,"  by  Harold  M.  Bowman,  in  Political  Science 
Quarterly,  21,  609.  Reproduced  in  part,  by  permission. 


446  AMERICAN   FEDERAL   GOVERNMENT 

The  administrative  tribunals  of  the  states  and  of  the  nation  are  even 
more^  distinct,  each  from  the  other,  than  are  the  state  and  national 
judicial  courts.  They  form  two  separate  systems.  Though  the  federal 
judges  have  displayed  a  tactful  policy  of  non-interference,  the  national 
courts  may  in  some  cases  control  the  state  courts,  directly  or  indirectly. 
But  the  national  administration  seldom  or  never  interferes  with  the  state 
administration  by  administrative  as  distinguished  from  judicial  process. 
Their  remoteness  is  even  more  emphasized  by  their  diverse  characters 
and  by  the  difference  in  the  matters  with  which  they  have  to  deal. 

The  state  boards,  bureaus,  or  offices  which  have  the  power  of  adjudica- 
tion or  discretionary  determination,  and  which  are  assimilated  in  their 
procedure,  constitution,  or  powers  to  the  judicial  courts,  are  of  many 
kinds.  They  range  from  dairy  commissions  up  to  boards  of  health  and 
superintendents  and  boards  of  education;  and  of  recent  years  they  are 
to  be  found  in  almost  every  branch  of  commonwealth  administration. 
One  of  the  most  remarkable  tendencies  in  commonwealth  administra- 
tion at  the  present  time  is  the  rapid  multiplication  of  such  authorities. 
In  1903  alone,  about  140  new  permanent  state  boards  and  offices  were 
created,  as  well  as  some  75  temporary  commissions  and  39  special 
investigating  committees.1  Of  course  many  of  these  organs  of  govern- 
ment are  not  tribunals  even  in  the  loose  sense  in  which  the  term  is  here 
employed,  but  are  more  properly  merely  administrative  authorities. 

The  administrative  tribunals  of  the  national  government  are  more 
highly  developed  than  those  of  the  states,  one  of  them  being  so  like  a 
court  in  its  organization  and  procedure  as  to  have  received  that  designa- 
tion. The  more  conspicuous  among  them  are  the  boards  of  general 
appraisers,  the  comptroller  of  the  treasury,  the  interstate  commerce  com- 
mission, the  'court  of  claims,  the  commissioner  of  internal  revenue  and 
the  secretary  of  the  interior.  There  are  in  addition  many  minor  and 
inferior  tribunals.  Their  number  is  accounted  for  not  so  much  by  the 
variety  of  subjects  which  fall  under  the  national  administration  as  by 
the  hierarchical  organization  of  that  administration.  This  has  resulted 
in  a  system  of  appellate  jurisdiction  which  is  seldom  found  in  the  states. 
Among  these  minor  tribunals  are  the  commissioner  of  pensions,  the 
board  of  pension  appeals,  the  patent  office's  board  of  examiners-in-chief, 
the  register  and  receiver  of  the  general  land-office. 

French  writers  on  administrative  law,  such  as  M.  Laferriere,  whose 
attitude  is  adopted  by  M.  Jacquelin,  refuse  to  consider  our  federal  court 
of  claims  as  in  any  sense  an  administrative  court,  because,  "like  all  the 
federal  courts,"  it  is  subject  to  the  control  of  the  supreme  court.  It  is, 
says  Laferriere,  a  judicial  tribunal,  deciding  administrative  causes. 
These  two  writers  seem  to  take  the  position  that  if  the  court  of  claims 
can  not  be  considered  an  administrative  tribunal,  much  less  can  any 
other  board  or  office  that  is  found  in  the  United  States.  For  this  reason, 

1  New  York  State  Library  Bulletin,  "  Review  of  Legislation  for  1903." 


THE   DEPARTMENTS  447 

perhaps,  they  do  not  examine  the  other  tribunals  in  any  detail.  And 
seemingly  they  fail  in  due  appreciation  of  the  fact  that  many  acts  of  our 
administrative  tribunals  may  not  be  reviewed  by  the  courts.1  The 
courts  may  entertain  jurisdiction  to  ascertain  whether  these  tribunals 
are  competent  to  act  in  the  particular  case,  but  this  is  far  different  from 
actual  control. 

It  is  also  to  be  noted  that  the  interstate  commerce  commission  has 
generally  received  little  or  no  consideration  in  the  scanty  literature  of 
American  administrative  law.  The  reason  for  this  is  not  clear,  but  the 
most  plausible  explanation  seems  to  be  found  in  the  fact  that  the  com- 
mission, except  in  so  far  as  it  may  be  deemed  an  arm  of  the  criminal 
courts,  does  not  have  to  do  with  the  relations  between  the  government 
and  natural  or  artificial  persons,  but  rather  with  the  relations  between 
such  persons  themselves.  From  this  point  of  view  it  is  like  the  ordinary 
civil  courts.  In  the  judgment  of  the  present  writer  the  interstate  com- 
merce commission  is  sufficiently  peculiar  to  be  placed  in  a  category  by 
itself;  but  it  should  not  be  excluded  from  the  list  of  administrative 
tribunals,  in  any  broad  consideration  of  this  subject,  especially  as  its 
activity  seems  likely  to  develop  important  principles  of  administrative 
law.  It  should  finally  be  noted  that,  to  make  the  consideration  of  the 
subject  complete,  the  activity  of  the  ordinary  courts  in  their  employment 
of  the  injunction  and  other  extraordinary  legal  remedies  would  have  to 
be  considered,  but  this  topic  is  beyond  the  limits  of  the  present  article. 

Powers  and  Organization.  —  It  is  in  the  powers  and  organization  of 
the  administrative  tribunals  that  their  chief  interest  lies.  What  are  the 
extent  and  limits  of  their  powers  of  " administrative  adjudication"? 
The  decisions  of  the  state  courts  and  of  the  United  States  supreme  court 
indicate  that  the  United  States  constitution  and  the  constitutions  of  the 
states  do  not  bar  the  grant  to  administrative  authorities  of  the  power  to 
make  a  final  determination  after  a  hearing.  Even  when  the  determina- 
tion seriously  affects  property  rights,  its  finality  has  in  many  cases  been 
upheld,  though  of  course  the  administrative  authority,  like  a  court,  must 
be  careful  to  keep  within  its  jurisdiction.  Thus  some  of  the  state  courts 
have  admitted  the  finality  of  the  determinations  of  boards  of  health  in 
respect  to  nuisances.  It  is  true  that  certain  of  these  cases  preserve  a 
judicial  review  of  such  determinations  through  the  writ  of  certiorari; 
but  the  review  does  not  extend  over  the  findings  of  fact  but  is  limited 
to  the  jurisdiction  of  the  board  and  the  regularity  of  its  proceedings. 
The  law  of  some  states  affords  even  less  protection  from  arbitrary  action 
in  this  matter  than  the  French  law,  though  a  bill  of  rights  is  unknown 

1  How  strong  the  statement  of  the  American  situation  with  respect  to  this  matter  may 
be  made  will  be  suggested  by  an  extract  from  a  recent  book  on  American  administrative 
law:  "Within  the  scope  of  its  jurisdiction  the  adjudication  of  the  administration  is  final 
unless  there  be  a  provision  to  the  contrary."  Wyman,  Administrative  Law,  sec.  115. 
But  it  is  evident  from  other  passages  in  this  book  that  the  author  would  qualify  this 
statement  somewhat.  It  is  too  general. 


448  AMERICAN   FEDERAL   GOVERNMENT 

to  the  French  constitution.  The  United  States  supreme  court  has  held 
that  the  finding  by  administrative  officers  of  the  amount  of  a  tax  to  be 
paid  (the  tax  being  a  license  tax)  was  final,  even  though  the  complainant 
had  no  opportunity  to  be  heard  before  the  assessment  of  the  tax.1  The 
same  court  has  held  that  the  determination  of  an  administrative  authority 
is  final  as  regards  the  admission  into  this  country  of  Chinese  who  claim 
that  they  are  American  citizens.2  An  administrative  tribunal  may  thus 
in  effect  deprive  a  man  of  his  citizenship.  And  these  findings  will  not 
be  reviewed  by  the  courts  —  at  least  in  the  absence  of  complaint  of  abuse 
of  discretion  —  even  on  the  writ  of  habeas  corpus.  The  conclusion  from 
this  must  be  either  that  an  administrative  tribunal  will  protect  the 
liberties  of  the  individual  as  scrupulously  as  a  judicial  court,  or  that  the 
citizen  has  been  deprived  of  one  of  his  greatest  historic  rights.3  Perhaps 
the  former  is  the  true  conclusion.  In  any  event,  these  decisions  indicate 
the  great  power  that  may  be  granted  to  the  administration. 

The  determination  of  the  board  of  general  appraisers  upon  a  question 
of  valuation  is  final,  and  it  is  stated  that  only  upon  allegation  of  fraud 
will  a  rehearing  be  granted.  The  decisions  of  state  educational  authori- 
ties are  often  not  subject  to  review  by  the  courts.  The  authority  of  the 
New  York  commissioner  of  education  in  the  decision  of  appeals  from 
lower  school  authorities  is  final.  The  code  of  Iowa  provides  that  the 
decision  of  the  state  superintendent  of  public  instruction  on  appeal  shall 
be  final,  and  the  supreme  court  of  the  state  has  refused  to  interfere  with 
such  decision  when  the  superintendent  has  acted  within  his  jurisdiction. 
It  is  curious  to  note  that  in  an  early  case  this  court  described  this  function 
of  the  superintendent  as  "ministerial."  Later  it  called  it  "judicial"; 
then  "<?«<m-judicial."  The  terms  "administrative,"  "<?wa«"- adminis- 
trative," "discretionary,"  etc.,  have  been  applied  elsewhere.  Such  are 
the  mutations  of  the  judicial  mind.  And  how  well  they  illustrate  the 
pains  with  which  anything  like  a  scientific  nomenclature  for  the  ad- 
ministrative law  is  born !  The  existing  nomenclature  has  all  the  defects 
of  a  fortuitous  development. 

1  McMillen  v.  Anderson,  95  U.  S.  37,  and  Gary  v.  Curtis,  3  Howard,  236,  cited  in 
Goodnow,  op.  cil.,  p.  336. 

2  United  States  v.  Ju  Toy,  198  U.  S.  253. 

3  Mr.  Justice  Brown,  with  whom  Mr.  Justice  Peckham  concurred,  said  in  dissenting : 
"It  has  been  seen  that  under  these  rules  [concerning  immigration]  it  is  the  duty  of  the 
immigration  officer  to  prevent  communication  with  the  Chinese  seeking  to  land  by  any 
one  except  his  own  officers.   He  is  to  conduct  a  private  examination  with  only  the  witnesses 
present  whom  he  may  designate.  ...  If  this  be  not  a  star-chamber  proceeding  of  the 
most  stringent  sort,  what  more  is  necessary  to  make  it  one?    I  do  not  see  how  any  one 
can  read  these  rules  and  hold  that  they  constitute  due  process  of  law  for  the  arrest  and 
deportation  of  a  citizen  of  the  United  States.  .  .  .  Such  a  decision  is  to  my  mind  appalling. 
By  all  the  authorities  the  banishment  of  a  citizen  is  punishment,  and  punishment  of  the 
severest  kind.  .  .  .  This  petitioner  has  been  guilty  of  no  crime,  and  so  judicially  deter- 
mined.    Yet  in  defiance  of  this  adjudication  of  innocence,  with  only  examination  before 
a  ministerial  officer,  he  is  compelled  to  suffer  punishment  as  a  criminal  and  is  denied  the 
protection  of  either  a  grand  or  petty  jury."    Ibid.,  pp.  268,  269,  273. 


THE   DEPARTMENTS  449 

Not  only  may  the  jurisdiction  of  the  administrative  tribunal  be  final ; 
in  some  cases  it  is  also  exclusive.  In  others  it  is  concurrent  or  alternative 
with  that  of  the  courts.  Some  decisions  by  these  tribunals  are  binding 
upon  the  administration,  but  are  subject  to  review  and  modification  by 
the  courts.  And  if  the  authority  in  some  cases  is  of  great  importance, 
in  others  it  is  shadowy.  The  interstate  commerce  commission  was  at 
first  believed  to  have  very  material  powers,  but  to-day  it  is  characterized 
as  merely  "an  investigating  and  prosecuting  administrative  body,  whose 
findings  are  given  a  prima  facie  force  in  judicial  proceedings."  Justice 
Jackson  in  the  Kentucky  and  Indiana  Bridge  case,  the  first  important 
decision  under  the  act  to  regulate  commerce,  described  the  commission 
as  the  referee  of  each  and  every  circuit  court  of  the  United  States.  It 
may  also  institute  proceedings  in  the  courts,  "and  thus  be  a  prosecutor 
in  the  same  cases  wherein  it  has  acted  as  judge." 

The  incidental  powers  of  the  administrative  tribunals  vary  quite  as 
widely  as  their  determinative  authority.  The  power  to  subpoena  wit- 
nesses and  in  effect  compel  them  to  testify  is  possessed  by  some  tribunals 
and  is  totally  denied  to  others.  It  is  of  course  true  that  in  those  instances 
where  this  power  is  possessed,  the  actual  punishment  for  contempt  — 
with  rare  exceptions,  if  any  —  will  be  imposed  by  a  court.  In  some 
cases  the  administrative  tribunal  is  so  constituted  and  its  powers  are  of 
such  a  nature  as  to  admit  of  self-execution  of  its  orders.  A  board  of 
health  may  thus  not  only  order  a  quarantine  but,  in  the  exercise  of  its 
police  power,  it  may  enforce  it.  The  judgments  of  the  federal  court  of 
claims  are  of  themselves  mandatory  upon  the  secretary  of  the  treasury. 
But  for  the  actual  enforcement  of  its  orders  the  administrative  tribunal 
must  very  generally  depend  upon  the  assistance  of  a  court.  The  scope 
of  the  order  which  may  be  issued  by  the  administrative  authority  is 
determined  by  common  law  or  statute,  as  indeed  is  the  extent  of  its  powers 
generally.  Thus  the  definition  of  nuisances  and  the  scope  of  an  order 
of  abatement  are  largely  matters  of  common  law.  The  statute  may  give 
an  administrative  tribunal  power  to  issue  an  order  so  general  in  scope 
as  in  effect  to  amount  to  legislation.  In  the  American  Warehousemen's 
Association  case  the  interstate  commerce  commission,  in  reliance  upon 
the  statute  and  a  decision  of  the  supreme  court,  while  expressly  negativ- 
ing its  intention  "to  make  any  order  in  this  case  as  such,"  issued  a  gen- 
eral order  requiring  carriers  to  state  in  their  tariffs  what  free  storage  was 
granted  and  the  terms  and  conditions  under  which  it  was  granted. 
Instructed  by  the  abuses  in  the  particular  instances  the  commission  thus 
made  a  regulation  to  meet  the  general  situation.1 

It  is  apparent  from  the  preceding  discussion  that  even  the  property 
and  liberty  of  the  individual  are  in  some  measure  subject  to  adminis- 
trative tribunals,  and  that  the  review  of  the  action  of  these  bodies  by 

1  American  Warehousemen's  Association  v.  Illinois  Central  R.  R,  Co.  et  a!.,  7  I.  C.  C. 
Rep.  556,  at  591  and  592. 

29 


450  AMERICAN   FEDERAL   GOVERNMENT 

the  courts  is  frequently  no  more  than  a  review  for  regularity.  But  on 
these  points  the  courts  are  sensitive.  Liberty  and  property  are  their 
special  wards,  just  as  the  private  law  is  their  peculiar  demesne.  This 
explains  the  contention  of  some  lawyers  that  power  to  make  a  rate  could 
not  be  given  to  the  interstate  commerce  commission  because  the  exercise 
of  such  a  power  would  amount  to  a  taking  of  property,  and  the  milder 
contention  that  the  courts  must  be  allowed  to  step  in  whenever  they 
deem  the  rate  confiscatory.  One  of  the  most  tangible  expressions  of  this 
jealous  devotion  to  the  authority  of  the  courts  in  the  United  States  is 
found  in  the  extent  to  which  contracts  are  kept  under  judicial  control. 
Even  when  the  power  of  the  administrative  tribunal  is  plenary  with 
respect  to  other  matters,  it  may  be  denied  any  shred  of  authority  over 
contracts.  On  the  other  hand,  in  those  countries,  notably  France,  where 
the  administration  is  more  scientifically  organized,  there  is  a  division  of 
authority.  In  France  the  administration  may  act  in  three  different 
capacities  in  making  contracts:  first,  in  connection  with  its  functions 
as  superintendent  of  the  private  domain ;  second,  in  connection  with  its 
administration  of  public  services ;  and  third,  in  connection  with  its  action 
as  puissance  ptiblique,  for  example  in  connection  with  its  concessions 
of  certain  franchises  or  privileges.  In  the  last  case  the  contract  is  said 
to  be  administrative  in  its  nature,  and  the  administrative  tribunals 
therefore  almost  necessarily  have  jurisdiction  over  it.  In  the  first  and 
second  cases  the  contract  is  administrative  only  when  the  law  declares 
it  to  be  so;  hence  in  these  cases  the  ordinary  courts  have  sole  jurisdic- 
tion, subject  to  exceptions,  the  exceptions  being  more  frequent  in  the 
first  case  than  in  the  second.  Many  of  the  American  administrative 
tribunals  indeed  have  jurisdiction  in  respect  to  contracts,  but  it  is  a 
ragged,  uncertain,  and  in  some  cases  almost  accidental  jurisdiction.  The 
comparative  precision  of  the  French  law  is  absolutely  wanting.  This  is 
not  to  say  that  the  French  law  is  without  defects.  Certain  of  the  com- 
plexities which  have  resulted  from  the  separation  of  its  administrative 
and  judicial  courts  have  at  least  the  factitious  character  and  the  super- 
ficial absurdity  of  some  of  the  fictions  of  our  common  law. 

Administrative  procedure.  —  The  administrative  tribunals  of  the 
United  States  differ  as  much  in  their  processes  as  in  their  powers.  In 
some  of  them  the  procedure  has  much  of  the  formalism  of  the  regular 
courts.  In  general,  while  they  have  their  own  peculiar  make  of  red  tape, 
they  are  impatient  of  the  punctilious  give-and-take  of  plea,  demurrer, 
replication,  motion,  and  amendment.1  They  aim  at  expedition  and 
economy.  They  are  primarily  executive  agents  and  as  such  prone  to 
take  the  substance  and  let  the  shadow  go.  The  very  spirit  of  adminis- 

1  "Things  are  done  in  administrative  adjudication  which  could  never  be  done  in 
judicial  process.  Principles  are  violated  in  administrative  process  which  are  funda- 
mental in  the  courts.  Often  the  whole  solemn  procedure  is  upset  so  that  there  may  be 
prompt  administration."  Wyman,  op.  cit.,  sec.  119. 


THE   DEPARTMENTS  451 

tration  is  the  accomplishment  of  things.  This  may  and  no  doubt  does 
at  times  result  in  the  sacrifice  of  rights.  But  safeguards  are  established. 
For  example,  in  the  case  of  pension  claims,  after  the  preliminary  ad- 
judication of  fact  and  law  there  may  be  a  reference  to  the  commissioner 
of  pensions,  and  then  an  appeal  to  the  secretary  of  the  interior  which 
is  in  effect  decided  by  a  special  board  of  pension  appeals.  Safeguards 
in  the  way  of  administrative  appeal  in  cases  of  interference  in  applica- 
tions for  a  patent  and  in  cases  of  protest  before  the  land  office  are  even 
more  detailed  and  conservative  of  rights.  Still  the  administrative  tribu- 
nals incline  toward  the  laxer  rules  of  ex  parte  proceedings.  These  tribu- 
nals are  often  as  well  satisfied  by  written  as  by  oral  testimony.  The 
rules  of  evidence  are  little  known  to  them  and  even  less  employed.  The 
court  of  claims  acts  without  a  jury,  the  court  itself  being  judge  of  both 
the  law  and  the  facts.  Indeed,  it  may  be  said  that  the  jury  system  is 
foreign  to  the  administrative  tribunals.  Parties  whose  names  do  not 
appear  on  the  record  are  often  allowed  to  intervene  with  little  or  no 
formality.  The  interstate  commerce  commission,  in  its  more  important 
investigations,  frequently  extends  a  general  invitation  to  all  interested 
to  appear  and  testify  before  it.  In  numerous  cases  it  has  allowed  the 
attorneys  of  special  interests  to  displace  its  own  attorneys,  and  this  has 
generally  been  much  to  the  advantage  of  the  inquiry.  Examination  of 
the  testimony  in  some  of  the  commission's  inquiries  reveals  that  at  times 
"a  voice"  has  asked  a  question  and  "a  voice"  has  made  reply.  The 
evidence  given  by  such  mediums  in  the  commission's  seances  appears 
as  a  part  of  the  printed  record  and  no  motion  for  its  exclusion  seems  to 
have  been  made. 

Some  further  light  is  thrown  upon  the  methods  of  administrative 
tribunals  by  an  examination  of  their  respect  for  their  own  previous 
decisions.  The  influence  of  that  sovereign  principle  of  the  common  law 
which  bids  the  court  to  follow  precedents  prevails  even  here.  It  could 
not  well  be  otherwise  in  a  country  whose  jurisprudence  is  Anglo-Saxon. 
Thus  the  school  tribunals  in  the  states  frequently  publish  extensive 
reports  or  copious  digests  of  their  decisions  for  the  guidance  of  their 
successors.  The  decisions  of  the  court  of  claims,  of  the  treasury,  of  the 
comptroller  of  the  treasury,  of  the  interstate  commerce  commission  and 
of  other  administrative  authorities  are  published.  The  comptroller  of 
the  treasury  has  held  that  a  decision  of  a  comptroller  should  not  be 
reversed  by  a  successor  upon  the  presentation  of  a  case  involving  the 
same  state  of  facts  unless  there  was  a  manifest  error  in  the  interpretation 
of  the  law.  Many  other  illustrations  of  this  attitude  might  be  given. 
The  interstate  commerce  commission  has  manifested  a  keen  sense  of 
the  importance  of  continuity  in  its  interpretation  of  the  law.  But  after 
all,  the  application  of  the  rule  which  dictates  adherence  to  established 
principles  is  quite  different  from  its  application  in  the  courts  of  law. 
Administrative  tribunals  are  not  careful  to  make  due  distinctions  be- 


452  AMERICAN   FEDERAL   GOVERNMENT 

tween  the  dicta  and  the  rulings  in  preceding  cases.  Often  their  findings 
are  based  so  distinctly  upon  the  special  facts  of  the  single  case  that 
precedent  can  hardly  be  said  to  exist.  An  instructive  and  amusing 
illustration  of  an  attempt  to  reconcile  a  decision  with  alleged  precedents 
is  found  in  a  case  decided  by  the  interstate  commerce  commission.  In 
maintaining  tliat  the  shipper  of  petroleum  in  barrels  should  not  be 
charged  for  the  weight  of  the  barrel,  since  the  shipper  in  tanks  was  not 
charged  for  the  weight  of  the  tank,  the  commission  stoutly  protested 
that  it  was  following  its  precedents.  The  contrary  had  been  contended 
with  much  vigor  by  those  who  opposed  this  ruling.  And  on  the  face  of 
the  cases  it  fully  appears  that  the  commission's  language,  although  it 
was  not  as  clear  as  it  might  have  been,  gave  much  warrant  for  this  con- 
trary assumption.  The  commission,  after  having  asserted  at  many 
pages'  length  that  its  decisions  were  consistent  and  that  it  had  followed 
its  own  precedents,  wound  up  with  the  assertion  that  it  was  an  adminis- 
trative body  and  was  therefore  not  obliged  to  follow  precedent  when  it 
saw  fit  to  do  otherwise.1  It  would  of  course  arrest  the  necessary  develop- 
ment of  law  in  the  new  fields  in  which  these  tribunals  are  working  if  they 
observed  the  rule  of  stare  decisis  in  anything  like  the  degree  in  which  it 
is  observed  in  the  ordinary  courts. 

The  fact  that  the  procedure  is  so  largely  untechnical  and  often  ex- 
peditious, if  not  summary,  conduces  to  a  result  which  affords  one  of  the 
best  arguments  for  the  maintenance  and  extension  of  these  tribunals. 
This  is  the  comparative  inexpensiveness  to  private  individuals  of  pro- 
ceedings before  them.  Frequently  the  expense  is  borne  almost  entirely 
by  the  government,  and  the  cost  to  the  government  is  much  less  than 
that  of  prosecutions  in  criminal  courts. 


GOVERNMENT  BY  EXECUTIVE  RULINGS2 
BY  ALBERT  DEAN  CURRIER 

THE  recent  extensive  exercise  of  the  power  of  Congress  "to  regulate 
commerce,"  etc.,  under  the  provisions  of  the  Constitution,  has  revived, 
at  this  time,  a  close  scrutiny  and  study  of  the  letter  and  spirit  of  our 
national  Constitution,  not  only  by  our  statesmen,  but  also  by  all  persons 
who  are  interested  in  good  government.  The  rapid  growth  of  Federal 
power  involves  not  only  the  power  of  Congress,  under  some  attempted 
constructions  of  the  Constitution,  to  enact  general  laws  which  frequently 
clash  with  the  laws  of  the  States,  but  also  involves  the  rapidly  increasing 
practice  by  Congress  of  delegating  to  the  executive  heads  of  govern- 

1  Rice,  Robinson  and  Witherop  v.  W.  N.  Y.  &"  Penna.  R.  R.  Co.,  4  I.  C.  C.  Rep.  131, 
at  155. 

2  North  American  Review,  September,  1907.    Reproduced  in  part,  by  permission. 


THE  DEPARTMENTS  453 

mental  departments  the  power  to  exercise  functions  which  properly 
belong  to  the  legislative  and  judicial  branches  of  the  Government. 

The  people  of  the  United  States  are  a  very  busy  people,  interested  in 
the  progress  of  their  individual  affairs.  They  are  so  busy  that  they  are 
inclined  to  leave  the  study  and  enforcement  of  those  principles  which 
make  for  good  government  to  those  who  make  politics  their  business. 
So  great  has  become  this  laissez-faire  policy  of  the  people,  and  so  great 
has  been  their  faith  in  the  executive  officials  of  the  Government,  that  they 
have  not  fully  realized  the  rapid  growth  of  the  executive  branch  of  our 
Government,  which  is  silently  and  surely  usurping  many  of  the  func- 
tions of  government  that  properly  belong  to  the  legislative  and  judicial 
branches.  This  growth  of  power  in  the  executive  branch  appears  to  be 
due,  principally,  to  the  tendency  of  the  legislative  branch  of  the  Gov- 
ernment, as  heretofore  mentioned,  to  delegate  to  the  executive  heads  of 
departments  the  power  to  make  " Rules  and  Regulations"  under  general 
laws  enacted  by  Congress,  with  power  to  interpret  such  laws  wherein 
they  may  appear  ambiguous  or  silent  upon  specific  matters. 

******** 
The  Constitution  vests  the  executive  power  of  the  Government  in 
the  President  of  the  United  States,  but,  inasmuch  as  it  is  physically  im- 
possible for  one  person  to  perform  all  the  executive  duties  and  functions 
of  the  Government,  Congress  has  prescribed  by  statutory  laws  (Sees. 
158  to  161,  inclusive,  of  the  United  States  Statutes)  that  the  executive 
functions  shall  be  distributed  among  "executive  departments";  and  it 
is  also  prescribed  (Sec.  161,  United  States  Statutes)  that  "the  head  of 
each  department  is  authorized  to  prescribe  regulations,  not  inconsistent 
with  law,  for  the  government  of  his  department,  the  conduct  of  its  officers 
and  clerks,  the  distribution  and  performance  of  its  business,  and  the 
custody,  use,  and  preservation  of  the  records,  papers,  and  property  ap- 
pertaining to  it."  The  direction  of  the  President  is  to  be  presumed  in 
all  the  instructions  and  rules  issuing  from  the  competent  departments.1 

Although  the  Constitution  and  the  statutes  creating  such  executive 
offices  do  not  anticipate  or  legally  permit  the  promulgation  of  regula- 
tions except  for  the  purpose  of  enforcing  such  rights,  duties  and  obliga- 
tions as  are  clearly  defined  by  statute,  yet,  in  those  specific  matters  upon 
which  the  Federal  statutes  are  ambiguous  or  silent,  by  virtue  of  the  dis- 
cretionary power  vested  in  the  executive  heads  of  departments  by  Con- 
gress and  the  authority  delegated  to  such  executive  officers  by  certain 
acts  of  Congress,  portions  of  the  laws  are  interpreted  by  executive  officials, 
and  the  deficiencies  in  such  laws  are  supplied  by  executive  rulings  thereon. 
Such  executive  rulings  are  often  based  upon  forced  and  strained  con- 
structions of  the  statutory  laws. 

1  See  Wilcox  v.  Jackson,  13  Pet.  (U.  S.)  513;  Confiscation  Cases,  20  Wall.  (U.  S.)  92; 
Wolsey  v.  Chapman,  101  U.  S.  769;  U.  S.  v.  Fletcher,  148  U.  S.  89,  and  other  legal  au- 
thorities. 


454  AMERICAN   FEDERAL   GOVERNMENT 

In  recent  years,  the  extensive  and  rapid  growth  of  all  sorts  of  indus- 
tries and  business  pursuits  in  the  United  States  has  imposed,  both  upon 
the  State  Legislatures  and  Congress,  duties  which  require  much  expert 
knowledge  in  the  framing  of  just  laws.  Congressional  Committees  rely 
greatly  for  recommendation  and  advice  upon  departmental  officials, 
who  are  often  inclined  to  recommend  the  delegation  of  more  authority 
and  greater  discretionary  power  to  the  executive  heads  of  departments. 
The  public  too  often  fails  in  properly  advising  its  representatives  in 
Congress,  especially  upon  matters  which  require  technical  knowledge, 
and  the  experts  who  represent  various  industries  before  Congressional 
Committees  are  frequently  regarded  as  being  prejudiced  in  favor  of 
private  interests.  Thus,  many  specific  questions  which  should  be  deter- 
mined by  Congress  and  which  should  be  adjusted  by  proper  Congres- 
sional Acts,  are,  by  the  terms  of  the  Acts  themselves,  left  to  the  executive 
heads  of  departments  to  be  determined  and  enforced  by  them. 

The  exercise  of  such  discretionary  power  by  the  executive  heads  of 
departments  involves,  first,  a  legal  interpretation  of  the  laws,  which  is  a 
judicial  function,  and,  second,  the  preparation  and  adoption  of  rules 
and  regulations  thereunder,  which  are  properly  legislative  functions. 

Such  rulings  by  the  executive  head  of  any  department  may  have  the 
effect  of  destroying  one  class  of  industries  and  the  building  up  of  another 
class. 

As  an  example  of  such  power,  a  commission  of  the  executive  branch 
of  the  Government  consisting  of  the  Secretary  of  the  Treasury,  the  Sec- 
retary of  Agriculture  and  the  Secretary  of  Commerce  and  Labor,  may, 
by  virtue  of  the  extraordinary  discretionary  powers  vested  in  it  under  the 
Food  and  Drugs  Act  of  1906,  in  any  ruling  which  it  may  see  fit  to  promul- 
gate, prohibit  the  manufacture  and  sale  of  some  articles  of  food  which 
it  considers  adulterated,  but  which  many  food  experts  may  have  decided 
to  be  wholesome  and  free  from  deleterious  substances.  It  may  prohibit 
the  use  of  a  label  bearing  the  name  by  which  such  article  has  for  many 
years  been  known  to  the  public,  if  it  considers  such  label  to  be  false  or 
misleading,  although  the  majority  of  the  people,  and  even  the  minority 
of  the  commission  who  have  had  a  more  extensive  experience  and  knowl- 
edge in  connection  with  the  same,  may  dissent  from  its  opinion.  The 
same  executive  commission  may,  by  virtue  of  its  authority,  under  the 
same  law,  prohibit  the  use  of  labels  which  are  duly  registered  trade 
marks,  thereby  destroying  the  use  of  properties  which,  by  reason  of  long 
use,  have  become  valuable  assets  of  the  parties  which  have  so  used  them. 

Under  the  Congressional  Appropriation  Act  of  1907,  the  Secretary 
of  Agriculture  may,  "whenever  he  has  reason  to  believe  that  any  articles 
are  being  imported  from  foreign  countries  which  are  dangerous  to  the 
health  of  the  people  of  the  United  States,"  request  the  Secretary  of  the 
Treasury  to  refuse  delivery  of  such  articles  to  the  consignee;  and  such 
request  is  mandatory  upon  the  Secretary  of  the  Treasury.  It  is  true 


THE   DEPARTMENTS  455 

that  these  specific  Acts  now  referred  to  provide  that  manufacturers  and 
importers  of  food  who  may  be  accused  of  violations  of  such  rules  and 
regulations  shall  be  granted  hearings  before  the  executive  head  of  the 
Agricultural  Department,  but  the  decision  of  the  question  of  criminal 
prosecution  lies  wholly  with  such  executive  official.  On  the  other  hand, 
the  Secretary  of  Agriculture  may,  in  his  discretion,  neglect  or  refuse  to 
enforce  the  manifest  purpose  and  intent  of  the  laws  above  referred  to, 
if  he  so  desires. 

Similar  conditions  prevail  to  a  greater  or  less  extent  in  nearly  all  execu- 
tive departments  of  the  Government,  and  the  Federal  courts  cannot 
issue  a  writ  of  mandamus  to  compel  an  executive  head  of  a  department 
to  perform  his  duties  in  accordance  with  the  manifest  purpose  of  an 
Act  of  Congress,  as  to  those  specific  matters  in  which  discretionary 
power  has  been  delegated  to  such  executive  by  such  Act.1 

A  certain  condition  of  affairs,  alleged  to  have  arisen  under  the  powers 
granted  to  the  executive  head  of  the  Post-office  Department  to  make 
"rules  and  regulations,"  is  well  described  in  a  memorable  speech  delivered 
by  the  Hon.  Edward  Dean  Crumpacker,  a  member  of  Congress  from 
Indiana,  before  the  House  of  Representatives  on  April  nth,  1906,  in 
discussing  the  Post-office  Appropriation  Bill  then  before  the  House, 
from  which  speech,  as  it  appears  in  the  Congressional  Record,  the  follow- 
ing extracts  are  quoted: 

"Mr.  CRUMPACKER.  'I  understand  there  is  a  system  of  penalties  imposed 
by  the  regulations  of  the  Post-office  Department.  The  gentleman  must  re- 
member that  that  Department  has  legislative,  executive  and  judicial  powers 
combined.  It  exercises  all  the  powers  of  the  Government  over  the  postal 
business  of  the  country.  .  .  . 

"'The  criticism  that  I  am  making  is  of  the  law  and  not  of  the  officers,  be- 
cause I  assume  that  they  are  performing  their  duties  in  accordance  with  the 
postal  regulations  or  the  law.  I  do  not  know  which  it  is;  possibly  it  may  be 
both.  .  .  . 

"There  is  a  system  of  postal  espionage  in  this  country  that  is  absolutely 
inconsistent  with  the  spirit  of  free  institutions,  and  it  is  not  what  should  be 
expected  in  a  land  of  law  and  liberty. 

'"Post-office  inspectors  may  lodge  complaints  with  the  Postmaster-General 
that  the  business  of  an  individual  is  fraudulent.  The  Postmaster-General 
may  be  satisfied  from  the  secret  reports  of  the  inspectors  that  there  are  some 
irregularities  in  the  character  of  the  business  the  particular  individual  is  con- 
ducting, and  he  may  peremptorily  enter  a  fraud  order  and  withhold  from  that 
individual  the  privileges  of  the  mails,  absolutely  ruining  his  business  and  blast- 
ing forever  his  business  reputation.  When  that  citizen  calls  upon  the  Post- 
master-General, asking  permission  to  see  the  charges  that  have  been  made 
against  him,  he  is  informed  that  they  are  confidential  and  is  refused  the 
privilege."' 

1  See  U.  S.  v.  Elaine,  139  U.  S.  306;  U.  S.  v.  Guthrie,  17  How.  (U.  S.)  284  and  other 
citations  thereunder. 


456  AMERICAN   FEDERAL   GOVERNMENT 

There  have  also  been  many  bitter  complaints  from  a  large  number  of 
citizens  as  to  alleged  unjust  rulings  by  the  executive  officials  of  the  De- 
partment of  the  Interior  as  to  the  methods  of  the  disposition  of  certain 
Government  lands,  concerning  which  Congress  has  given  to  the  Secretary 
of  the  Interior  discretionary  powers. 

Recently  a  ruling  issued  by  the  Secretary  of  Agriculture  proclaimed, 
in  apparent  contradiction  to  the  intent  and  purpose  of  the  Food  and 
Drugs  Act  of  1906,  that  butter  is  exempt  from  certain  provisions  of  the 
Act  referred  to,  while  other  articles  of  food  and  drink  are  not  favored 
with  such  exemption.  This  ruling  is  alleged  to  have  been  based  upon  a 
technical  definition  of  the  term  by  which  the  product  referred  to  is  usually 
known,  created  in  a  Congressional  Act  of  a  radically  different  nature 
and  purpose  over  twenty  years  ago,  which  definition  was  so  created  by 
the  words  of  that  Act  itself  "for  the  purpose  of  this  Act."  Although 
often  requested  so  to  do,  the  executive  head  of  the  department  referred 
to  has  refused  to  submit  the  legal  phase  of  this  question  to  the  Depart- 
ment of  Justice  for  an  opinion  thereon. 

Congress  frequently  delegates  to  executive  officials  authority  not  only 
to  make  rules  and  regulations  as  to  the  conduct  of  the  general  executive 
business  of  their  departments,  but  also  delegates  discretionary  power 
in  the  promulgation  of  rules  and  regulations  under  certain  statutory 
laws  with  reference  to  matters  which  are  not  soecifically  mentioned  in 
such  laws. 

And  the  rules  and  regulations  promulgated  by  executive  heads  of 
departments  are  endowed  with  the  full  force  and  effect  of  law,  and  are 
to  be  so  regarded  until  the  courts  shall  have  decided  that  they  are  incon- 
sistent with  the  statutory  laws.  Where  the  language  in  a  statute  is 
ambiguous  and  open  to  different  interpretations,  the  construction  put 
upon  it  by  the  executive  department  is  regarded  as  decisive.1 

Moreover,  violations  of  the  rules  and  regulations  promulgated  by  the 
executive  heads  of  departments,  thus  having  the  force  and  effect  of  law, 
are  frequently  punishable  by  severe  penalties  prescribed  in  general 
statutory  Acts.  Generally  there  is  no  provision  for  direct  appeal  by  the 
accused  person  to  the  courts  from  such  executive  rulings.  Persons  who 
may  believe  that  injustice  has  been  done,  that  they  have  been  discrimi- 
nated against  by  such  rules  and  regulations,  and  that  such  rulings  are 
not  consistent  with  the  statutory  laws,  must  submit  to  the  injustice,  by 
compliance,  or  to  the  only  alternative,  which  is  an  indictment  and  crimi- 
nal prosecution  for  an  alleged  violation  of  such  rules  and  regulations. 
Again,  the  rules  and  regulations  prescribed  to-day  by  an  executive  official 
may  be  stricken  out  and  a  new  set  of  rules  and  regulations  promulgated 
by  him  to-morrow,  concerning  the  same  subject.  This  may  be  done 
without  any  alteration  whatever  of  the  statutory  laws,  but  simply  by 

1  See  Brown  v.  U.  S.,  113  U.  S.  568;  St.  Paul,  Minnesota,  etc.,  Ry.  Co.  v.  Phelps,  137 
U.  S.  528,  and  other  citations  thereunder. 


THE   DEPARTMENTS  457 

reason  of  a  new  interpretation  of  the  law  by  the  executive  officer  to 
whom  the  power  to  make  rules  and  regulations  is  delegated  by 
Congress. 

In  one  division  of  the  Treasury  Department,  the  Division  of  Customs, 
the  exercise  of  discretionary  power  by  executive  officials  formerly  worked 
so  much  injustice  in  the  appraisal  of  importations  under  the  tariff 
schedule  that  Congress  found  it  necessary,  under  pressure  of  a  popular 
demand,  to  create  by  the  act  of  June  ioth,  1890,  a  Board  of  General 
Appraisers,  from  whose  decisions  the  importer  may,  under  certain  con- 
ditions, apply  to  the  Circuit  Court  of  the  United  States  for  a  review  of 
the  questions  of  law  and  fact  involved.  However,  there  appears  to  be 
no  such  provision  for  appeal  to  the  courts  from  the  rulings  of  the  Com- 
missioner of  Internal  Revenue,  when  approved  by  the  Secretary  of  the 
Treasury;  and  it  was  only  after  a  gigantic  struggle  in  Congressional 
Committees  and  upon  the  floors  of  both  Houses  of  Congress  that  the  Act 
of  Congress  for  the  enlargement  of  the  powers  of  the  Interstate  Com- 
merce Commission,  approved  June  2Qth,  1906,  was  so  amended  as  to 
provide  an  appeal  to  the  courts,  under  certain  conditions,  from  the  de- 
cisions of  the  Interstate  Commerce  Commission,  which  Commission  is 
practically  a  part  of  the  executive  branch  of  the  Government. 

In  accepting  delegated  powers  to  construe  Congressional  acts  which 
are  general  in  their  scope,  and  to  make  rules  and  regulations  there- 
under, the  executive  branch  of  the  Government  assumes  great 
responsibilities  and  arbitrary  power.  Yet  the  Chief  Executive  of  our 
Government  is  apparently  requesting  that  Congress  shall  delegate  still 
greater  discretionary  powers  to  the  executive  heads  of  Government 
departments. 

It  was,  perhaps,  with  a  sense  of  such  responsibility  that  the  Hon. 
John  W.  Yerkes,  Commissioner  of  Internal  Revenue,  when  his  advice 
was  requested  by  the  Committee  on  Ways  and  Means  in  the  House  of 
Representatives  on  February  yth,  1906,  in  consideration  of  the  House 
Bill  relating  to  free  alcohol  in  the  arts  and  manufactures,  said:  "I  do 
not  want  a  general  bill,  leaving  everything  to  be  determined  as  to  methods, 
modes,  processes,  rules  and  regulations  by  the  Department."  In  con- 
nection with  the  same  bill,  when  he  appeared  before  the  Senate  Com- 
mittee on  Finance  on  May  5th,  1906,  he  repeated  the  same  statement, 
and  further  said:  " There  was  my  view  with  regard  to  the  bill,  and  it 
indicates  clearly  that  I  did  not  want  the  scope  of  power  and  authority 
that  is  given  under  the  House  Bill." 

It  may,  therefore,  be  noted  that  not  all  the  executive  officials  of  the 
Government  are  seeking  greater  discretionary  powers  in  their  respective 
departments. 

The  foregoing  paragraphs  are  probably  sufficient  to  indicate  the  general 
tendency  of  the  executive  branch  of  our  Government  to  usurp  the  powers 
and  functions  of  the  legislative  and  judicial  branches. 


458  AMERICAN  FEDERAL   GOVERNMENT 

It  is  the  belief  of  many  of  our  best  statesmen  that  the  true  intent 
and  spirit  of  the  Constitution  are  thus  being  thwarted,  and  that  the 
fundamental  principles  of  our  Government  are  thus  being  gradually 
undermined. 

Congress,  as  a  body,  appears  to  be  slow  to  recognize  the  evils  which 
result  from  the  delegation  of  its  powers  to  the  executive  branch  of  the 
Government.  The  judiciary  conservatively  guards  against  encroach- 
ments upon  the  legislative  and  executive  branches  of  the  Government 
and  generally  refrains  from  interfering  with  the  discretionary  powers 
delegated  by  Congress  to  the  executive  heads  of  departments.. 

Upon  a  review  of  these  conditions,  questions  naturally  arise  as  to  the 
proper  remedy  for  the  evils  which  thus  appear.  Is  Congress,  burdened 
with  its  multiplying  duties,  able  to  enact  all  the  laws  demanded  by  the 
people  in  forms  so  clear  and  specific,  as  to  all  the  new  problems  of  our 
rapidly  growing  industries  and  general  business  interests,  that  rulings 
by  executive  heads  of  departments  shall  be  unnecessary,  except  as  to 
the  conduct  of  the  persons  working  under  them  and  the  purely  executive 
business  of  their  respective  departments?  Is  the  executive  branch 
of  our  Government  exercising  functions  in  excess  of  its  constitutional 
powers  ?  Are  the  citizens  of  our  country  performing  their  civic  duties 
in  fully  and  properly  advising  their  representatives  in  Congress,  and 
insisting  upon  proper  legislation?  Are  the  people  of  the  various 
States  neglecting  the  studies  of  political  science  and  the  practice 
of  those  civic  virtues  which  make  for  good  government?  Are  we 
to  give  the  constitutional  powers  of  the  legislative  and  judicial 
branches  of  our  Government,  wholly  or  in  part,  into  the  hands  of 
the  executive? 

The  Hon.  Elihu  Root  says,  in  his  recent  admirable  book  on  "The 
Citizen's  Part  in  Government": 

"More  than  all,  our  hopes  must  depend  upon  the  general  and  active  par- 
ticipation of  the  whole  governing  body  of  the  American  democracy  in  working 
out  the  problems  and  applying  the  principles  of  government  with  wisdom, 
with  integrity,  with  just  and  kindly  consideration  for  the  rights  of  others  — 
every  citizen  doing  his  full  and  manly  duty  for  his  country." 

The  sovereignty  which  is  vested  in  the  people  may  be  maintained  only 
by  its  proper  exercise.  Should  we  not,  therefore,  in  the  interests  of 
personal  rights  and  civil  liberty,  strive  to  abolish  the  evils  of  our  politi- 
cal system  as  they  appear,  to  the  end  "that  the  Government  of  the 
people,  by  the  people,  and  for  the  people,  shall  not  perish  from  the 
earth"? 


THE   DEPARTMENTS  459 


GOVERNMENT  PRINTING1 

THE  article  in  the  September  Atlantic  on  "The  Problem  of  Federal 
Printing,"  by  W.  S.  Rossiter  of  the  Census  Bureau,  is  a  quiet,  mostly 
statistical  account  of  the  enormous  development  and  great  cost  of  this 
branch  of  governmental  activity.  The  Public  Printer  of  the  United 
States,  in  a  word,  directs  the  greatest  printing  office  in  the  world,  it 
being  in  capacity  and  output  five  or  six  times  as  large  as  the  Imprimerie 
Nationale. 

Mr.  Rossiter's  figures  show  strikingly  how  the  Government  at  Wash- 
ington has  become  more  and  more  adrip  with  printer's  ink.  In  1790  the 
total  cost  of  Federal  printing  was  $8,785;  in  1904,  $7,080,906.  By  the 
graphic  chart  illustrating  the  expansion  of  this  business,  it  appears  that 
there  have  been  ups  and  downs  in  it,  but  that  since  about  1892  the  curve 
has  swept  upward  continuously  and  portentously  —  the  total  outlay 
having  nearly  doubled  in  that  period.  Mr.  Rossiter  estimates  that  the 
cost  of  Government  printing  in  the  decade  1900-1909  will  exceed 
$60,000,000  —  or  more  than  had  been  spent  on  it  from  1790  to  1880. 
It  is  not  surprising  that  alarm  has  been  taken  at  this  making  of  many 
books  in  the  Government  Printing  Office.  President  Roosevelt  has  dis- 
covered a  superfluity  here,  much  of  the  sort  that  Baring-Gould  de- 
nounced in  German  printing,  and  has  called  for  retrenchment,  though 
it  has  not  been  observed  that  he  himself  has  furnished  the  Government 
printers  less  "copy"  than  before.  Congress  has  appointed  a  joint  com- 
mittee to  inquire  into  the  matter.  On  all  sides  it  seems  to  be  agreed 
that  the  public  printing  has  increased,  is  increasing,  and  ought  to  be 
diminished. 

But  to  discover  the  vestigia  retrorsum  is  always  the  rub,  in  such  matters. 
Everybody  is  willing  that  everybody  else  should  leave  a  report  or  mono- 
graph inedited,  but  as  for  his  own  —  why,  the  machinery  of  Govern- 
ment could  scarcely  go  on-  unless  it  were  got  up  handsomely  with  charts 
and  plates.  The  truth  is  that  the  printing  habit  has  grown  upon  us 
immensely.  It  is  not  confined  to  the  Government  at  Washington.  The 
various  States  show  an  increase  in  public  printing  almost  as  marked  as 
that  voted  by  Congress.  Their  total  outlay  on  this  item,  Mr.  Rossiter 
informs  us,  has  nearly  doubled  in  twenty  years  —  rising  from  $1,561,350 
in  1880  to  $2,740,323  in  1900.  Five  or  six  States,  and  those  in  general 
the  most  backward,  have  been  able  to  curtail  this  expense,  but  the  others 
have  pushed  it  to  higher  and  higher  figures.  New  York's  printing  bill, 
for  example,  was  $145,610  in  1880;  in  1900,  it  was  $654,330.  Doubt- 
less there  has  been  extravagance  in  State  work  of  this  kind,  though  most 
of  the  States  let  it  by  contract ;  yet  there  can  be  no  question  that  the  great 

1  New  York  Evening  Post,  1905. 


460  AMERICAN   FEDERAL   GOVERNMENT 

increase  in  Government  publications  has  met  a  popular  demand.  The 
people  have  been  rather  proud  of  the  elaborate  State  and  Federal  re- 
ports on  forests  and  fisheries,  on  mines  and  water-supplies,  on  insect 
pests  and  improved  grains  and  better  methods  of  cultivation  —  in  short, 
on  every  topic  or  entity  in  the  heavens  above  or  the  earth  beneath  that 
could  interest  a  village  Solomon.  And  we  Americans  are,  in  this  respect, 
the  envy  of  foreigners.  More  than  once  has  the  London  Spectator  sighed 
over  some  elaborate  volume  de  luxe  issued  by  our  Printing  Office,  of  a 
scientific  or  social  interest,  and  regretted  that  such  work  could  so  seldom 
be  matched  in  Great  Britain. 

No  utility,  however,  no  aesthetic  gratification  can  justify  waste;  and 
that  the  Government  Printing  Office  at  Washington  is  extravagantly 
conducted,  Mr.  Rossiter's  showing  leaves  one  in  no  possible  doubt.  The 
cost  of  printing  is  "decidedly  higher  than  the  charge  for  similar  commer- 
cial work."  Indeed,  asserts  the  writer  we  follow,  if  this  Government 
plant  doing  a  business  of  $7,000,000  a  year  were  transformed  into  a 
private  concern,  "the  owners  would  discover  that  the  charges  for  prod- 
uct, although  they  do  not  include  the  usual  and  important  items  of  rent, 
interest,  and  profit,  are  nevertheless  from  one  and  one-half  to  ten  times 
as  high  as  the  prices  charged  for  similar  work  by  printers  who  include 
the  omitted  items."  Let  prescribers  of  the  Government  ownership 
panacea  take  due  note  of  this.  It  is  the  ugliest  symptom  of  the  disease 
they  are  treating. 

Mr.  Rossiter's  explanation  of  the  fact  that  "it  is  practically  impossible 
to  secure  from  Government  employees  the  work  —  clerical  or  manual  — 
that  is  expected  and  exacted  from  employees  of  private  concerns,"  is, 
to  say  the  least,  engagingly  simple.  The  reason  is  not,  he  protests,  poli- 
tics. It  is  not  wrapped  up  in  the  nature  of  public  administration.  No ; 
the  trouble  is  with  "the  climate  of  Washington."  He  must  mean  moral 
climate,  for  printers  certainly  do  the  average  amount  of  work  in  far 
hotter  cities;  Kipling  describes  a  scene  of  almost  demonic  activity  in 
the  office  of  the  Pioneer  of  Allahabad.  But  in  Washington,  avers  Mr. 
Rossiter,  there  is  a  "lack  of  commercial  excitement,"  and  that  "rush 
and  bustle"  which  keys  up  workers  elsewhere.  Yes;  and  there  is  also, 
as  every  one  knows,  the  feeling  that  Uncle  Sam  is  the  sleepiest  and  most 
lenient  of  employers;  that  there  are  Representatives  and  Senators  to 
keep  you  in  your  job,  no  matter  how  worthless  you  are ;  and  all  the  other 
complex  of  motive  and  influence  which  makes  Government  work  notori- 
ously more  costly  and  less  efficient  than  private.  If  a  really  competent 
Public  Printer  were  employed,  paid  what  his  services  were  worth  (not 
the  mere  $4,500  now  assigned  to  the  superintendent  of  a  $7,000,000 
business),  and  given  an  absolutely  free  hand,  with  a  warning  to  the  poli- 
ticians not  to  meddle,  he  could  doubtless  effect  great  economies  and 
tone  the  Printing  Office  up  as  it  needs;  but  short  of  some  such  radical 
reform  we  are  likely  to  see  small  improvement. 


THE  DEPARTMENTS  461 


SPEAKER  CANNON'S   MAIDEN  SPEECH,   ON  PUBLIC 
DOCUMENTS  * 

MR.  CANNON  said: 

"Suppose,  however,  that  it  really  will  cost  to  send  these  public  docu- 
ments through  the  mails  free  as  much  as  the  postage  at  full  rates  would 
be  if  it  were  prepaid,  still  I  think  it  would  be  wise  to  distribute  them.  In 
this  Republic  of  ours  the  people  are  sovereign,  and  to  govern  properly 
they  must  have  not  only  patriotism  and  honesty,  but  also  intelligence 
and  a  knowledge  of  the  principles  of  the  Government  and  the  manner 
in  which  the  Government  is  administered,  and  therefore  they  have  estab- 
lished free  schools  all  over  the  country  for  the  instruction  of  the  people 
at  the  public  expense;  and  the  temper  of  our  people  is  to  make  that 
instruction  compulsory,  and  properly  so,  for  each  citizen  practically  is 
as  much  interested  in  the  proper  exercise  of  the  right  of  franchise  by  the 
humblest  and  poorest  citizen  of  the  Republic,  as  he  is  in  his  own  proper 
action ;  and  as  the  different  executive  officers  of  the  Government,  as  well 
as  persons  constituting  the  legislature,  are  only  for  the  time  being  acting 
as  the  agents  of  the  people,  it  is  important,  aye,  not  only  important,  but 
indispensable,  if  the  genius  of  our  institutions  is  preserved  and  the  Gov- 
ernment properly  administered,  that  the  people  should  keep  track  of 
the  acts  and  doings  of  their  agents.  It  is  true  that  now  news  is  given 
very  generally  to  the  people  through  the  newspapers  of  the  country; 
but  when  we  consider  the  hurried  manner  in  which  it  is  prepared,  as 
well  as  in  which  it  is  read,  and  that  the  papers  frequently,  I  may  say 
generally,  contain  a  mere  digest  of  the  proceedings  of  Congress,  of  the 
transactions  of  the  different  Departments  connected  with  the  Executive, 
and  that  from  the  very  nature  of  things  the  reports,  as  digested  and  pub- 
lished, frequently  contain  errors,  and  are  warped  by  partisan  feeling, 
the  necessity  of  a  correct  and  complete  record  of  the  proceedings  of  the 
legislative  and  executive  branches  of  the  Government  being  published 
in  convenient  form  for  use  and  preservation,  and  distributed  to  the 
people  for  their  information,  is  at  once  seen. 


"The  truth  is,  the  people  get  valuable  information  concerning  the 
administration  of  the  Government  in  all  its  departments  and  branches 
from  these  documents,  and  my  observation  is  that  information  obtained 
therefrom  passes  orally  from  man  to  man ;  and  while  I  am  proud  of  our 
great  cities,  and  many  of  the  citizens  who  reside  therein,  noted  for  their 
proficiency  in  their  respective  callings  and  their  great  energy  and  industry 
in  accomplishing  that  which  they  undertake,  yet  in  the  country,  among 

1  Congr.  Record,  Feb.  18,  1874. 


462  AMERICAN   FEDERAL   GOVERNMENT 

the  producers,  the  men  who  earn  bread  by  the  sweat  of  their  faces,  you 
find  equally  as  great  industry,  and  I  dare  say  more  general  intelligence 
and  patriotism;  and  this  class  of  men  especially  are  anxious  to  receive 
public  documents  and  read  them." 

A  MEMBER.  "The  gentleman  must  have  oats  in  his  pocket." 
"I  understand  the  gentleman.  Yes;  I  have  oats  in  my  pocket  and 
hay  seed  in  my  hair  [great  laughter] ;  and  the  Western  people  generally 
are  affected  in  the  same  way ;  and  we  expect  that  the  seed,  being  good, 
will  yield  a  good  crop,  I  trust  tenfold ;  and  the  sooner  legislation  is  had, 
not  only  as  proposed  by  this  bill,  but  in  all  other  respects  as  the  people 
desire  and  equity  and  justice  shall  dictate,  the  better  it  will  be  in  the 
long  run  for  all  people  in  this  country,  whatever  may  be  their  calling  or 
wherever  they  may  reside." 


In  closing  he  said: 

"And  last,  but  not  least,  we  are  told  that  the  city  press  of  the  country 
oppose  this  bill,  or  any  other  measures  that  will  give  the  people  free 
public  documents,  for  the  reason,  as  alleged,  that  the  individuals  or 
incorporated  companies  conducting  the  same  are  desirous  of  monopoliz- 
ing the  means  of  information  touching  the  affairs  of  the  Government, 
at  least  to  the  exclusion  of  information  to  be  furnished  by  the  Govern- 
ment at  the  general  expense.  And  it  is  also  claimed  by  some  that  Mem- 
bers can  not  afford  to  advocate  and  vote  for  this  bill,  for  the  reason  that 
the  city  press  will  declare  war  upon  them  and  continue  the  same  until 
they  lose  standing  with  their  constituency.  I  do  not  believe  that  the 
city  press  will  as  a  unit  oppose  this  bill.  A  portion  of  it  may  from  selfish 
motives,  in  some  instances,  and  honestly  in  others.  I  certainly  have  no 
desire  to  call  upon  myself  the  assaults  of  the  city  press,  or  any  portion 
of  it.  Nor  do  I  fear  it  as  long  as  I  truly  represent  my  constituents  and 
act,  in  my  representative  capacity,  for  the  interest  of  the  people  generally. 
Nor  would  I  change  the  power  of  the  press  to  assail  my  acts  or  those  of 
anyone  else.  On  the  contrary,  every  Member  of  Congress,  or  other 
agent  of  the  people,  should  court  a  fair  criticism  of  his  acts,  and  if  he 
vitally  misrepresents  the  people,  they  should,  and  no  doubt  would,  fail 
to  continue  him  in  places  of  trust.  But  no  man  is  a  proper  person  to 
represent  the  people  unless  he  has  the  honesty  and  the  backbone  to 
stand  and  do  what  is  right  and  for  the  interest  of  the  people,  without 
reference  to  what  anyone  may  say  of  him,  or  what  the  action  of  the  press 
may  be  in  the  premises." 


THE  DEPARTMENTS  463 


INSTRUCTIONS  TO  THE  PHILIPPINE   COMMISSION 

[After  the  Philippine  Islands  had  been  acquired  under  the  Treaty  of  Paris, 
the  administration  of  the  Islands  was  for  awhile  carried  on  by  military  authority. 
President  McKinley,  however,  sent  a  commission  to  the  Islands  to  report  on 
conditions  and  to  make  recommendations  for  future  action.  In  1900  a  Civil 
Commission  was  appointed  for  the  government  of  the  Islands.  The  instruc- 
tions which  were  issued  by  the  President  to  this  commission  are  given  below.] 

"!N  the  message  transmitted  to  the  congress  on  the  5th  of  December, 
1899,  I  said,  speaking  of  the  Philippine  Islands:  'As  long  as  the  insurrec- 
tion continues  the  military  arm  must  necessarily  be  supreme.  But  there 
is  no  reason  why  steps  should  not  be  taken  from  time  to  time  to  inau- 
gurate governments  essentially  popular  in  their  form  as  fast  as  territory 
is  held  and  controlled  by  our  troops.  To  this  end  I  am  considering  the 
advisability  of  the  return  of  the  commission  or  such  of  the  members 
thereof  as  can  be  secured  to  aid  the  existing  authorities  and  facilitate  this 
work  throughout  the  islands.' 

"To  give  effect  to  the  intention  thus  expressed,  I  have  appointed  Hon. 
William  H.  Taft  of  Ohio,  Prof.  Dean  C.  Worcester  of  Michigan,  Hon. 
Luke  E.  Wright  of  Tennessee,  Hon.  Henry  C.  Ide  of  Vermont,  and  Prof. 
Bernard  Moses  of  California,  commissioners  to  the  Philippine  Islands 
to  continue  and  perfect  the  work  of  organizing  and  establishing  civil 
government  already  commenced  by  the  military  authorities,  subject  in 
all  respects  to  any  laws  which  Congress  may  hereafter  enact. 

"The  commissioners  named  will  meet  and  act  as  a  board,  and  the 
Hon.  William  H.  Taft  is  designated  as  president  of  the  board.  It  is 
probable  that  the  transfer  of  authority  from  military  commanders  to 
civil  officers  will  be  gradual  and  will  occupy  a  considerable  period.  Its 
successful  accomplishment  and  the  maintenance  of  peace  and  order  in 
the  meantime  will  require  the  most  perfect  cooperation  between  the 
civil  and  military  authorities  in  the  island  and  both  should  be  directed 
during  the  transition  period  by  the  same  Executive  department.  The 
commission  will  therefore  report  to  the  secretary  of  war  and  all  their 
action  will  be  subject  to  your  approval  and  control. 

"You  will  instruct  the  commission  to  proceed  to  the  city  of  Manila 
where  they  will  make  their  principal  office  and  to  communicate  with  the 
military  governor  of  the  Philippine  Islands  whom  you  will  at  the  same 
time  direct  to  render  to  them  every  assistance  within  his  power  in  the 
performance  of  their  duties.  Without  hampering  them  by  too  specific 
instructions,  they  should  in  general  be  enjoined,  after  making  themselves 
familiar  with  the  conditions  and  needs  of  the  country  to  devote  their 
attention  in  the  first  instance  to  the  establishment  of  municipal  govern- 
ments, in  which  the  natives  of  the  islands  both  in  the  cities  and  in  the 


464  AMERICAN   FEDERAL   GOVERNMENT 

rural  communities  shall  be  afforded  the  opportunity  to  manage  their 
own  local  affairs  to  the  fullest  extent  of  which  they  are  capable  and  sub- 
ject to  the  least  degree  of  supervision  and  control  which  a  careful  study 
of  their  capacities  and  observation  of  the  workings  of  native  control 
show  to  be  consistent  with  the  maintenance  of  law,  order  and  loyalty. 

"The  next  subject  in  order  of  importance  should  be  the  organization 
of  government  in  the  larger  administrative  divisions  corresponding  to 
countries,  departments  or  provinces  in  which  the  common  interests  of 
many  of  several  municipalities  falling  within  the  same  tribal  lines,  or 
the  s'ame  natural  geographical  limits  may  best  be  subserved  by  a  common 
administration.  Whenever  the  commission  is  of  the  opinion  that  the 
condition  of  affairs  in  the  islands  is  such  that  the  central  administration 
may  be  safely  transferred  from  military  to  civil  control  they  will  report 
that  conclusion  to  you,  with  their  recommendations  as  to  the  form  of 
central  government  to  be  established  for  the  purpose  of  taking  over  the 
control. 

"Beginning  with  the  first  day  of  September,  1900,  the  authority  to 
exercise  subject  to  my  approval,  through  the  secretary  of  war,  that  part 
of  the  power  of  government  in  the  Philippine  Islands  which  is  of  a  legis- 
lative nature  is  to  be  transferred  from  the  military  governor  of  the  islands 
to  this  commission  to  be  thereafter  exercised  by  them  in  the  place  and 
stead  of  the  military  government  under  such  rules  and  regulations  as 
you  shall  prescribe,  until  the  establishment  of  the  civil  central  govern- 
ment for  the  islands  contemplated  in  the  last  foregoing  paragraph,  or 
until  congress  shall  otherwise  provide.  Exercise  of  this  legislative  au- 
thority will  include  the  making  of  rules  and  orders,  having  the  effect  of 
law  for  the  raising  of  revenue  by  taxes,  customs  duties,  and  imposts; 
the  appropriation  and  expenditure  of  public  funds  of  the  islands;  the 
establishment  of  an  educational  system  throughout  the  islands;  the 
establishment  of  a  system  to  secure  an  efficient  civil  service ;  the  organi- 
zation and  establishment  of  courts;  the  organization  and  establishment 
of  municipal  and  departmental  governments  and  all  other  matters  of 
a  civil  nature  for  which  the  military  governor  is  now  competent  to  pro- 
vide by  rules  or  orders  of  a  legislative  character. 

"The  commission  will  also  have  power  during  the  same  period  to 
appoint  to  office  such  officers  under  the  judicial,  educational,  and  civil 
service  systems  and  in  the  municipal  and  departmental  governments  as 
shall  be  provided  for.  Until  the  complete  transfer  of  control  the  military 
governor  will  remain  the  chief  executive  head  of  the  government  of  the 
islands  and  will  exercise  their  executive  authority  now  possessed  by  him 
and  herein  expressly  assigned  to  the  commission,  subject,  however,  to 
the  rules  and  orders  enacted  by  the  commission  in  the  exercise  of  legis- 
lative powers  conferred  upon  them.  In  the  meantime  the  municipal 
and  departmental  governments  will  continue  to  report  to  the  military 
governor  and  be  subject  to  his  administrative  supervision  and  control, 


THE  DEPARTMENTS  465 

under  your  direction,  but  that  supervision  and  control  will  be  confined 
within  the  narrowest  limits  consistent  with  the  requirements  that  the 
powers  of  government  in  the  municipalities  and  departments  shall  be 
honestly  and  effectively  exercised  and  that  law  and  order  and  individual 
freedom  shall  be  maintained. 

"All  legislative  rules  and  orders,  establishments  of  governments  and 
appointments  to  office  by  the  commission  will  take  effect  immediately 
or  at  such  time  as  they  shall  designate,  subject  to  your  approval  and 
action  upon  the  coming  in  of  the  commission's  reports,  which  are  to  be 
made  from  time  to  time  as  their  action  is  taken.  Wherever  civil  govern- 
ments are  constituted  under  the  direction  of  the  commission  such  military 
posts,  garrisons,  and  forces  will  be  continued  for  the  suppression  of  in- 
surrection and  brigandage  and  the  maintenance  of  law  and  order  as 
the  military  commander  shall  deem  requisite  and  the  military  forces  shall 
be  at  all  times  subject  under  his  orders  to  the  call  of  the  civil  authorities 
for  the  maintenance  of  law  and  order  and  the  enforcement  of  their 
authority. 

"In  the  establishment  of  municipal  governments  the  commission  will 
take  as  the  basis  of  their  work  the  governments  established  by  the 
military  governor  under  his  order  of  Aug.  8,  1899,  and  under  the  report 
of  the  board  constituted  by  the  military  governor  by  his  order  of  Jan.  29,- 
1900,  to  formulate  and  report  a  plan  of  municipal  government,  of  which 
his  honor,  Cayetano  Arellano,  president  of  the  audienca,  was  chairman 
and  they  will  give  to  the  conclusions  of  that  board  the  weight  and  con- 
sideration which  the  high  character  and  distinguished  abilities  of  its 
members  justify. 

"In  the  constitution  of  departmental  or  provincial  governments  they 
will  give  especial  attention  to  the  existing  government  of  the  island  of 
Negros,  constituted,  with  the  approval  of  the  people  of  that  island,  under 
the  order  of  the  military  governor  of  July  22,  1899,  and  after  verifying, 
so  far  as  may  be  practicable,  the  reports  of  the  successful  working  of  that 
government  they  will  be  guided  by  the  experience  thus  acquired  so  far 
as  it  may  be  applicable  to  the  condition  existing  in  other  portions  of  the 
Philippines.  They  will  avail  themselves  to  the  fullest  degree  practicable 
of  the  conclusions  reached  by  the  previous  commission  to  the  Philippines. 

"In  the  distribution  of  powers  among  the  governments  organized  by 
the  commission  the  presumption  is  always  to  be  in  favor  of  the  smaller 
subdivision,  so  that  all  the  powers  which  can  properly  be  exercised  by 
the  municipal  government  shall  be  vested  in  that  government  and  all 
the  powers  of  a  more  general  character  which  can  be  exercised  by  the 
departmental  government  shall  be  vested  in  that  government  and  that 
in  the  governmental  system,  which  is  the  result  of  the  process,  the  central 
government  of  the  island,  following  the  example  of  the  distribution  of 
the  powers  between  the  states  and  the  national  government  of  the  United 
States,  shall  have  no  direct  administration  except  of  matters  of  purely 

3° 


466  AMERICAN  FEDERAL   GOVERNMENT 

general  concern  and  shall  have  only  such  supervision  and  control  over 
local  governments  as  may  be  necessary  to  secure  and  enforce  faithful 
and  efficient  administration  by  local  officers. 

"The  many  different  degrees  of  civilization  and  varieties  of  custom 
and  capacity  among  the  people  of  the  different  islands  preclude  very 
definite  instructions  as  to  the  part  which  the  people  shall  take  in  the  selec- 
tion of  their  own  offices,  but  these  general  rules  are  to  be  observed ;  that 
in  all  cases  the  municipal  officers  who  administer  the  local  affairs  of  the 
people  are  to  be  selected  by  the  people,  and  that  wherever  officers  of 
more  extended  jurisdiction  are  to  be  selected  in  any  way  natives  of  the 
islands  are  to  be  preferred,  and  if  they  can  be  found  competent  and  willing 
to  perform  the  duties,  they  are  to  receive  the  offices  in  preference  to  any 
others. 

"  It  will  be  necessary  to  fill  some  offices  for  the  present  with  Americans 
which  after  a  time  may  well  be  filled  by  natives  of  the  islands.  As  soon 
as  practicable  a  system  for  ascertaining  the  merit  and  fitness  of  candi- 
dates for  civil  office  should  be  put  in  force.  An  indispensable  qualifica- 
tion for  all  offices  and  positions  of  trust  and  authority  in  the  islands  must 
be  absolute  and  unconditional  loyalty  to  the  United  States  and  absolute 
and  unhampered  authority  and  power  to  remove  and  punish  any  officer 
deviating  from  that  standard  must  at  all  times  be  retained  in  the  hands 
of  the  central  authority  of  the  islands. 

"In  all  the  forms  of  government  and  administrative  provisions  which 
they  are  authorized  to  prescribe  the  commission  should  bear  in  mind 
that  the  government  which  they  are  establishing  is  designed  not  for  our 
satisfaction,  or  for  the  expression  of  our  theoretical  views,  but  for  the 
happiness,  peace,  and  prosperity  of  the  people  of  the  Philippine  Islands, 
and  the  measures  adopted  should  be  made  to  conform  to  their  customs, 
their  habits,  and  even  their  prejudices,  to  the  fullest  extent  consistent 
with  the  accomplishment  of  the  indispensable  requisites  of  just  and 
effective  government. 

"At  the  same  time  the  commission  should  bear  in  mind,  and  the  people 
of  the  islands  should  be  made  plainly  to  understand  that  there  are  certain 
great  principles  of  government  which  have  made  the  basis  of  our  govern- 
mental system  which  we  deem  essential  to  the  rule  of  law  and  the  main- 
tenance of  individual  freedom,  and  of  which  they  have,  unfortunately, 
learned  by  experience  possessed  by  us ;  that  there  are  also  certain  prac- 
tical rules  of  government  which  we  have  found  to  be  essential  to  the 
preservation  of  these  great  principles  of  liberty  and  law  and  that  these 
principles  and  these  rules  of  government  must  be  established  and  main- 
tained in  their  islands  for  the  sake  of  their  liberty  and  happiness,  how- 
ever much  they  may  conflict  with  the  customs  or  laws  of  procedure  with 
which  they  are  familiar. 

"It  is  evident  that  the  most  enlightened  thought  of  the  Philippine 
Islands  fully  appreciates  the  importance  of  these  principles  and  rules 


THE  DEPARTMENTS  467 

and  they  will  inevitably  within  a  short  time  command  universal  assent. 
Upon  every  division  and  branch  of  the  government  of  the  Philippines, 
therefore,  must  be  imposed  three  inviolable  rules: 

"That  no  person  shall  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law ;  that  private  property  shall  not  be  taken  for  public 
use  without  just  compensation;  that  in  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial,  to  be  informed 
of  the  nature  and  cause  of  the  accusation,  to  be  confronted  with  the  wit- 
nesses against  him,  to  have  compulsory  process  for  obtaining  witnesses 
in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  defense ;  that  ex- 
cessive bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
and  unusual  punishment  inflicted;  that  no  person  shall  be  put  twice  in 
jeopardy  for  the  same  offense,  or  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself;  that  the  right  to  be  secure  against  unrea- 
sonable searches  and  seizures  shall  not  be  violated ;  that  neither  slavery 
nor  involuntary  servitude  shall  exist  except  as  a  punishment  for  crime; 
that  no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed;  that  no  law 
shall  be  passed  abridging  the  freedom  of  speech  or  of  the  press  or  the 
rights  of  the  people  to  peacefully  assemble  and  petition  the  government 
for  redress  of  grievances ;  that  no  law  shall  be  made  respecting  an  estab- 
lishment of  religion  or  prohibiting  the  free  exercise  thereof;  and  the  free 
exercise  and  enjoyment  of  religious  profession  and  worship  without  dis- 
crimination or  preference  shall  forever  be  allowed. 

"  It  will  be  the  duty  of  the  commission  to  make  a  thorough  investi- 
gation into  the  titles  to  the  large  tracts  of  land  held  or  claimed  by 
individuals  or  by  religious  orders;  into  the  justice  of  the  claims  and 
complaints  made  against  such  land  holders  by  the  people  of  the  island 
or  any  part  of  the  people  and  to  seek  by  wise  and  peaceable  measures 
a  just  settlement  of  the  controversies  and  redress  of  wrongs  which  have 
caused  strife  and  bloodshed  in  the  past.  In  the  performance  of  this 
duty  the  commission  is  enjoined  to  see  that  no  injustice  is  done;  to  have 
regard  for  substantial  rights  and  equity,  disregarding  technicalities  so  far 
as  substantial  right  permits  and  to  observe  the  following  rules : 

"That  the  provision  of  the  treaty  of  Paris  pledging  the  United  States 
to  the  protection  of  all  rights  of  property  in  the  islands  and  as  well  the 
principle  of  our  own  government  which  prohibits  the  taking  of  private 
property  without  due  process  of  law,  shall  not  be  violated ;  that  the  wel- 
fare of  the  people  of  the  islands  which  should  be  a  paramount  considera- 
tion shall  be  attained  consistently  with  this  rule  of  property  right ;  that  if 
it  becomes  necessary  for  the  public  interest  of  the  people  of  the  islands 
to  dispose  of  claims  to  property  which  the  commission  finds  to  be  not 
lawfully  acquired  and  held  disposition  shall  be  made  thereof  by  due  legal 
procedure  in  which  there  shall  be  full  opportunity  for  fair  and  impartial 
hearing  and  judgment;  that  if  the  same  public  interests  require  the 
extinguishment  of  property  rights  lawfully  acquired  and  held  due  com- 


468  AMERICAN   FEDERAL   GOVERNMENT 

pensation  shall  be  made  out  of  the  public  treasury  therefor;  that  no 
form  of  religion  and  no  minister  of  religion  shall  be  forced  upon  any 
community  or  upon  any  citizen  of  the  islands ;  that  upon  the  other  hand, 
no  minister  of  religion  shall  be  interfered  with  or  molested  in  following 
his  calling,  and  that  the  separation  between  state  and  church  shall  be 
real,  entire,  and  absolute. 

"It  will  be  the  duty  of  the  commission  to  promote  and  extend  and  as 
they  find  occasion,  to  improve,  the  system  of  education  already  inaugu- 
rated by  the  military  authorities.  In  doing  this  they  should  regard  as 
of  first  importance  the  extension  of  a  system  of  primary  education  which 
shall  be  free  to  all  and  which  shall  tend  to  fit  the  people  for  the  duties 
of  citizenship  and  for  the  ordinary  avocations  of  a  civilized  community. 
This  instruction  should  be  given  in  the  first  instance  in  every  part  of  the 
islands  in  the  language  of  the  people.  In  view  of  the  great  number  of 
languages  spoken  by  the  different  tribes,  it  is  especially  important  to  the 
prosperity  of  the  islands  that  a  common  medium  of  communication  may 
be  established  and  it  is  obviously  desirable  that  this  medium  should  be 
the  English  language.  Especial  attention  should  be  at  once  given  to 
affording  full  opportunity  to  all  the  people  of  the  islands  to  acquire  the 
use  of  the  English  language. 

"  It  may  be  well  that  the  main  changes  which  should  be  made  in  the 
system  of  taxation  and  in  the  body  of  the  laws  under  which  the  people 
are  governed,  except  such  changes  as  have  -already  been  made  by«  the 
military  government,  should  be  relegated  to  the  civil  government,  which 
is  to  be  established  under  the  auspices  of  the  commission.  It  will,  how- 
ever, be  the  duty  of  the  commission  to  inquire  diligently  as  to  whether 
there  are  any  further  changes  which  ought  not  to  be  delayed,  and  if  so, 
they  are  authorized  to  make  such  changes,  subject  to  your  approval. 
In  doing  so  they  are  to  bear  in  mind  that  taxes  which  tend  to  penalize 
or  repress  industry  and  enterprise  are  to  be  avoided ;  that  provisions  for 
taxation  should  be  simple  so  that  they  may  be  understood  by  the  people ; 
that  they  should  affect  the  fewest  practicable  subjects  of  taxation  which 
will  serve  for  the  general  distribution  of  the  burden. 

"The  main  body  of  the  laws  which  regulate  the  rights  and  obliga- 
tions of  the  people  should  be  maintained  with  as  little  interference  as 
possible.  Changes  made  should  be  mainly  in  procedure,  and  in  the 
criminal  laws  to  secure  speedy  and  impartial  trials,  and  at  the  same 
time  effective  administration  and  respect  for  individual  rights. 

"In  dealing  with  the  uncivilized  tribes  of  the  islands  the  commission 
should  adopt  the  same  course  followed  by  Congress  in  permitting  the 
tribes  of  our  North  American  Indians  to  maintain  their  tribal  organiza- 
tion and  government  and  under  which  many  of  those  tribes  are  now  living 
in  peace  and  contentment  surrounded  by  a  civilization  to  which  they  are 
unable  or  unwilling  to  conform.  Such  tribal  governments  should,  how- 
ever, be  subjected  to  wise  and  firm  regulation,  and,  without  undue  or 


THE   DEPARTMENTS  469 

petty  interference,  constant  and  active  effort  should  be  exercised  to  pre- 
vent barbarous  practices  and  introduce  civilized  customs. 

"Upon  all  officers  and  employees  of  the  United  States  both  civil  and 
military,  should  be  impressed  a  sense  of  the  duty  to  observe  not  merely 
the  material,  but  the  personal  and  social  rights  of  the  people  of  the  islands, 
and  to  treat  them  with  the  same  courtesy  and  respect  for  their  personal 
dignity  which  the  people  of  the  United  States  are  accustomed  to  require 
from  each  citizen." 

The  articles  of  capitulation  of  the  city  of  Manila  on  the  i3th  of 
August,  1898,  concluded  with  these 'words:  "This  city,  its  inhabitants, 
its  churches  and  religious  worship,  its  educational  establishments  and 
its  private  property  of  all  descriptions,  are  placed  under  the  special  safe- 
guard of  the  faith  and  honor  of  the  American  army."  I  believe  that  this 
pledge  has  been  faithfully  kept.  As  high  and  sacred  an  obligation  rests 
upon  the  government  of  the  United  States  to  give  protection  for  property 
and  life,  civil  and  religious  freedom,  and  wise,  firm,  and  unselfish  guid- 
ance in  the  paths  of  peace  and  prosperity  to  all  the  people  of  the  Philip- 
pine Islands.  I  charge  this  commission  to  labor  for  the  full  performance 
of  this  obligation,  which  concerns  the  honor  and  conscience  of  their 
country,  in  the  firm  hope  that  through  their  labors  all  the  inhabitants  of 
the  Philippine  Islands  may  come  to  look  back  with  gratitude  to  the  day 
when  God  gave  victory  to  American  arms  at  Manila  and  set  their  lands 
under  the  sovereignty  and  the  protection  of  the  people  of  the  United 
States. 


ADMINISTRATION  OF  CUBA,   PORTO  RICO    AND 
THE   PHILIPPINE   ISLANDS1 

THE  master  mind  in  the  work  of  administering  the  Government  of 
Porto  Rico,  Cuba,  and  the  Philippine  Islands  under  military  occupation, 
and  in  building  up  civil  government  in  those  islands,  was  that  of  the 
Secretary  of  War.  He  was  obliged  to  construct  even  the  tools  with  which 
he  worked.  The  War  Department  had  no  bureau  or  administrative 
organization  for  disposing  of  the  vast  amount  of  department  work  oc- 
casioned by  the  acquisition  and  government  of  our  new  possessions,  yet 
such  organization  was  necessary  to  keep  the  Secretary  of  War  from 
being  overwhelmed  in  hopeless  confusion ;  thereupon,  what  is  now  the 
Bureau  of  Insular  Affairs  was  created.  With  reference  thereto  Secretary 
Root,  in  his  report  for  1901,  said:  "It  performs,  with  admirable  and 
constantly  increasing  efficiency,  the  great  variety  of  duties  which,  in 
other  countries,  would  be  described  as  belonging  to  a  colonial  office, 
and  would  be  performed  by  a  much  more  pretentious  establishment." 

1  From  an  article  on  the  War  Department  by  Governor  Charles  E.  Magoon,  in  Scrib- 
ner's  Magazine,  1903. 


470  AMERICAN   FEDERAL   GOVERNMENT 

The  responsibility  of  determining  the  problems  which  arose,  devolved 
upon  the  Secretary  of  War,  and  practical  necessities  required  a  deter- 
mination in  advance  of  Congressional  action  or  judicial  decision.  Many 
problems  raised  new  or  long  forgotten  questions  as  to  the  character  of 
the  Federal  Government,  the  nature  and  extent  of  the  Nation's  sover- 
eignty, the  division  of  its  powers,  and  the  extent  of  its  authority  at  home 
and  abroad.  It  was  necessary  to  ascertain  and  observe  precedents  in 
dealing  with  unprecedented  situations,  and  duly  regard  a  long  line  of 
judicial  decisions  touching  but  not  meeting  the  issue  involved.  Differ- 
ent civilizations,  different  systems  of  law  and  procedure,  and  different 
modes  of  thought  brought  into  contact  evolved  a  great  crowd  of  difficult 
questions.  New  facts  and  changed  conditions  called  for  the  interpreta- 
tion and  application  of  our  own  rules  of  policy  and  the  establishment 
of  further  rules.  Different  views  as  to  the  scope  of  authority  under  the 
distribution  of  powers  required  reconciliation.  The  application  of  the 
law  of  military  occupation  to  rights  and  practices  existing  under  the  laws 
of  Spain,  and  the  process  of  overturning  inveterate  wrongs  brought  about 
frequent  appeals  to  the  highest  authority,  which,  being  made  in  the  name 
of  justice,  compelled  consideration.  At  the  same  time  the  work  of  con- 
struction of  civil  government  was  carried  to  successful  completion.  A 
delicate  and  difficult  task  was  that  of  transferring  the  public  powers 
from  the  military  to  the  civil  organization,  to  bridge  the  chasm  between 
the  military  camps  and  the  forums  of  peace.  In  Cuba  the  change  was 
effected  by  means  of  a  constitutional  convention  which  adopted  a  form 
of  government  and  a  constitution  therefor;  officials  were  elected  there- 
under at  elections  held  under  the  auspices  of  the  Military  Government. 
The  necessities  of  the  public  service  being  provided  for,  the  military 
authorities  withdrew  from  place  and  power,  the  civilian  officials  entered 
upon  the  discharge  of  their  duties,  and  the  Republic  of  Cuba  took  its 
place  in  the  family  of  nations. 

At  this  stage  in  the  affairs  of  Cuba  it  became  necessary  for  Secretary 
Root  to  solve  the  far-reaching  problem  of  fixing  the  general  principles  for 
the  permanent  regulation  of  the  relations  between  Cuba  and  the  United 
States,  so  as  to  preclude  the  possibility  of  complications  which  might 
interfere  with  the  amity  essential  to  the  welfare  of  both  countries.  Cuba 
is  so  situated,  geographically,  that  it  must  be  either  the  steadfast  ally  or 
the  natural  enemy  of  the  United  States.  Internationally,  the  United 
States  is  bound  to  see  that  the  Government  of  Cuba  is  conducted  with 
due  regard  to  the  standards  erected  by  modern  civilization  and  the  obliga- 
tions devolving  upon  a  member  of  the  family  of  nations.  Nationally,  the 
United  States  is  bound  to  promote  its  own  industrial  welfare,  military  de- 
fense, and  domestic  tranquillity,  and  especially  to  prevent  the  recurrence 
of  yellow  fever,  that  in  the  past  periodically  ravaged  our  shores.  The 
measures  adopted  necessarily  must  be  projected  into  the  period  when 
Cuba  would  be  an  independent  State;  mutuality  was  essential  to  their 


THE  DEPARTMENTS  471 

continuance,  if  not  to  their  adoption ;  the  inhabitants  of  the  island  were 
eager  to  exercise  the  powers  of  independent  sovereignty ;  and,  therefore, 
the  task  presented  was  that  of  permitting  the  exercise  of  the  powers  of 
the  on-coming  Government  of  Cuba,  in  respect  of  these  matters,  and  at  the 
same  time  insure  that  said  powers  would  not  be  employed  in  an  unwar- 
ranted or  ill-advised  manner,  so  as  to  embarrass  or  delay  the  accomplish- 
ment of  the  laudable  purposes  of  the  United  States.  The  plan  adopted 
by  Secretary  Root  was  to  make  the  general  relations  to  be  sustained  by 
the  Republic  of  Cuba  to  the  United  States  part  and  parcel  of  the  basic 
structure  of  the  Republic  of  Cuba;  the  declaration  of  those  relations 
to  be  a  condition  precedent  to  the  establishment  of  independent  govern- 
ment in  the  island,  and  the  surrender  thereto  of  the  powers  and  authority 
acquired  by  the  United  States  by  the  war  with  Spain  and  the  Treaty  of 
Paris.  The  order  of  the  Military  Government  dated  July  25,  1900, 
authorizing  the  election  and  assemblage  of  the  delegates  to  the  Constitu- 
tional Convention,  declared  the  purpose  of  the  convention  to  be  "to 
frame  and  adopt  a  constitution  for  the  people  of  Cuba,  and,  as  a  part 
thereof,  to  provide  for  and  agree  with  the  Government  of  the  United 
States  upon  the  relations  to  exist  between  that  Government  and  the 
Government  of  Cuba."  When  the  Convention  assembled  the  Military 
Governor,  pursuant  to  instruction,  admonished  them  as  follows : 

It  will  be  your  duty,  first,  to  frame  and  adopt  a  constitution  for  Cuba,  and 
when  that  has  been  done,  to  formulate  what,  in  your  opinion,  ought  to  be  the 
relations  between  Cuba  and  the  United  States.  When  you  have  formulated 
the  relations  which,  in  your  opinion,  ought  to  exist  between  Cuba  and  the 
United  States,  the  Government  of  the  United  States  will,  doubtless,  take  such 
action  on  its  part  as  shall  lead  to  a  final  and  authoritative  agreement  between 
the  people  of  the  two  countries  to  the  promotion  of  their  common  interests. 

The  wisdom  of  this  course  was  soon  manifest.  The  Cuban  convention 
formulated  a  constitution,  but  omitted  action  with  reference  to  the 
relations  to  exist  between  Cuba  and  the  United  States;  whereupon 
Congress  took  the  initiative  and  adopted  what  is  known  as  the  "Platt 
Amendment,''  specifically  setting  forth  the  general  characteristics  of 
such  relations.  The  provisions  of  that  amendment  were  adopted  by 
the  Constitutional  Convention,  and  thereby  became  as  much  a  part  of 
the  governmental  organization  and  polity  of  the  Cuban  State  as  is  the 
Constitution  of  Cuba. 

The  construction  and  maintenance  of  popular  government  in  the 
Philippines  presented  no  problem  more  serious  than  how  to  accomplish 
the  transition  from  military  to  civil  government,  for  the  change  was  to 
be  made  "under  fire"  and  in  the  presence  of  a  formidable  insurrection. 
The  task  set  before  Secretary  Root  was  to  devise  a  plan  which  would 
enable  civil  government  to  keep  abreast  with  the  success  of  our  arms 
and  at  the  same  time  continue  available  at  all  times  the  authority  and 


472  AMERICAN  FEDERAL   GOVERNMENT 

organization  of  the  Military  Government  to  meet  possible  emergencies. 
The  task  was  nearly  as  difficult  as  the  impossible  proposition  of  causing 
two  bodies  to  occupy  the  same  space  at  the  same  time.  The  plan  adopted 
and  successfully  carried  out  was  that  set  forth  in  the  instructions  to  the 
Philippine  Commission,  dated  April  7,  1900.  These  instructions  were 
prepared  by  Secretary  Root.  They  constitute  the  Magna  Charta  of  the 
Philippines,  and  will  contest  with  the  Emancipation  Proclamation  for 
the  rank  of  first  of  American  State  documents. 

It  is  remarkable  and  gratifying  that  the  work  of  developing  civil  govern- 
ment in  Porto  Rico,  Cuba,  and  the  Philippines  was  accomplished  by 
exercising  the  military  powers  of  the  United  States.  The  army,  organized, 
trained,  and  equipped  for  the  work  of  destruction,  was  utilized  by  the 
President  and  the  Secretary  of  War  as  an  instrument  of  construction. 
That  which  was  fashioned  to  overthrow  and  expel  one  government  was 
devoted  to  the  purpose  of  erecting  another.  The  war  powers  of  this 
nation,  although  outside  of  the  limitations  of  our  laws  and  Constitution, 
knowing  nothing  of  their  restrictions,  bound  only  by  the  discretion  of 
the  Commander-in-Chief  and  the  practices  of  civilized  warfare,  were 
effectively  used  to  construct,  out  of  and  for  a  people  ignorant  of  our  form 
of  government  and  the  principles  on  which  it  is  founded,  a  government 
incorporating  and  inculcating  the  principles  and  theories  which  have 
made  the  United  States  foremost  among  the  nations  of  the  earth. 


LEGISLATIVE   AND    ADMINISTRATIVE 
PROBLEMS 

[The  article  by  Mr.  Samuel  W.  McCall,  Member  of  Congress  from  Massa- 
chusetts, on  the  Fifty-ninth  Congress,  gives  an  excellent  account  of  the  legisla- 
tive problems  before  the  nation  at  that  time.  The  matters  upon  which  action 
was  then  taken  do  not  yield  in  importance  even  to  the  great  structural  activities 
at  the  beginning  of  our  national  life.  Then  it  was  the  framework  of  the  state 
that  was  to  be  fitly  planned  and  carefully  erected,  now  it  is  the  conditions  of 
social  and  economic  life  themselves  that  are  to  be  given  legislative  form.  The 
first  session  of  the  Fifty-ninth  Congress  thus  becomes  a  turning  point  in  our 
national  development.] 

THE  FIFTY-NINTH   CONGRESS1 
BY  SAMUEL  W.  MCCALL 

IT  is  easy  to  overestimate  the  historical  importance  of  our  contemporary 
politics,  although  it  is  far  from  being  the  worst  fault  that  we  should  treat 
them  too  seriously.  Questions  that  are  discussed  with  a  vast  deal  —  I 
will  not  say  of  passion,  for  there  is  little  genuine  passion  in  our  current 
politics  —  but  with  a  vast  deal  of  noise,  are  somehow  quickly  displaced 
by  other  questions  no  more  important  nor  more  closely  related  to  the 
real  life  of  the  nation,  and  permanently  disappear.  We  have  witnessed 
in  the  last  decade  the  sudden  rise  of  statesmen,  almost  purely  the  crea- 
tures of  executive  favor,  who  have  in  a  moment  blazed  from  the  horizon 
to  the  zenith,  whose  greatness  has  been  established  by  executive  procla- 
mations and  solemnly  ratified  by  university  degrees  conferred  with 
academic  eloquence,  and  we  are  already  asking  ourselves  what  they  really 
said  or  did  that  history  will  trouble  itself  to  recall.  Its  verdicts  we  may 
be  sure  will  not  be  greatly  influenced  by  the  extravagance  of  contemporary 
censure  or  contemporary  praise.  Whether  or  not  a  President  really 
said  not  long  ago,  as  reported,  "In  Mr.  -  -  I  have  a  great  Secretary 
of  State,  in  Mr.  -  —  a  great  Attorney- General"  —  and  so  on  throughout 
nearly  the  whole  Cabinet  list  —  and  then,  "in  Mr. I  have  the  great- 
est war  minister  that  has  appeared  on  either  side  of  the  ocean  in  our 
time,"  there  are  plenty  of  contemporary  utterances  to  prove  amply  that 
now,  not  in  the  troubled  times  that  try  men's  souls,  but  in  the  fat  era 

1  The  Atlantic  Monthly,  Nov.  1906.    Reprinted  with  permission.    Copyright. 

473 


474  AMERICAN  FEDERAL   GOVERNMENT 

of  a  gross  material  prosperity,  the  real  golden  age  of  statesmen  has  at 
last  dawned. 

All  this  leads  to  caution  in  expressing  emphatic  opinions  concerning 
contemporary  politics,  although  the  extreme  of  censure  is  more  often 
met  with  than  that  of  praise  in  dealing  with  Congress,  except  when  it 
suits  the  whim  of  the  moment  to  treat  that  department  of  the  govern- 
ment as  the  mere  organ  of  the  executive.  It  is  somewhat  the  fashion 
to  rank  the  present  Congress,  in  the  importance  of  its  work,  with  the 
congresses  immediately  following  the  Civil  War.  I  think  this  opinion 
may  safely  be  treated  as  an  exaggerated  one ;  and  that  it  has  done  noth- 
ing that  can  equal  in  constitutional  importance  the  first  act  for  the  gov- 
ernment of  Porto  Rico,  or,  in  point  of  industrial  importance,  the  Wilson 
or  the  Dingley  Tariff  Act,  or  that  can  approach  in  the  logical  response 
to  a  critical  condition  of  the  country  the  repeal  of  the  silver-purchasing 
clause  of  the  Sherman  Act.  And  if  one  ventured  farther  back  he  would 
find  other  legislation  of  equal  importance  this  side  of  the  period  of 
Reconstruction. 

But  the  record  of  the  first  session  of  the  Fifty-ninth  Congress  is  very 
notable  both  for  what  was  done  and  what  was  not  done,  although  the 
balance  is  strongly  in  favor  of  actual  achievement.  It  failed  to  pass  the 
bill  granting  free  trade  to  the  Philippine  Islands,  and  the  tariff  escaped 
that  judicious  revision  which  it  has  so  often  been  proclaimed  to  be  the 
peculiar  prerogative  of  its  friends  to  bestow;  but  it  passed  the  bills  for 
untaxed  industrial  alcohol,  for  meat  inspection,  for  pure  food,  for  the 
admission  of  the  territories,  and  for  a  form  of  government  railroad  rate- 
making.  It  also  displayed  a  remarkable  capacity  for  spending  money, 
and  granted  a  total  of  appropriations  of  almost  fantastic  proportions. 

The  membership  of  the  two  houses  in  point  of  character  and  ability 
will  compare  not  unfavorably  with  the  best  congresses  that  have  ever 
been  sent  to  Washington.  Although  they  lacked  the  very  few  over- 
shadowing figures  associated  with  the  congresses  of  past  times,  they 
contained  men  of  rare  talent,  while  their  average  membership  was  of  a 
character  scarcely  to  encourage  those  who  delight  in  disparaging  their 
own  time  in  comparison  with  the  past,  or  with  the  future  their  imagina- 
tions paint. 

It  would  not  be  difficult  to  name  a  score  of  senators  who  in  debate  or 
in  some  other  important  feature  of  the  work  of  a  senator  will  be  likely 
to  be  remembered  at  least  by  the  next  generation.  "There  does  not 
seem  to  be  a  quorum  in  the  divine  presence,"  Mr.  Reed  once  sarcastically 
observed,  as  he  entered  the  Senate  Chamber  when  a  senator  was  deliver- 
ing an  elaborate  and  carefully  prepared  speech  to  a  small  number  of 
sleepy  colleagues.  But  Mr.  Reed,  who  signalized  his  speakership  by  his 
daring  way  of  counting  a  quorum,  and  who  always  went  to  the  heart  of 
the  subject  himself,  rarely  making  a  speech  in  the  House  over  fifteen 
minutes  long,  did  not  regard  with  favor  the  average  set  speech.  The  set 


LEGISLATIVE   PROBLEMS  475 

speech  of  a  senator  is  usually  one  of  portentous  length.  Senatorial 
dignity  seems  to  demand  the  quality  of  length  as  a  tribute  to  the  impor- 
tance of  the  rule  for  unlimited  debate.  Many  long  speeches  were  spoken 
in  the  Senate  during  the  late  session,  some  of  them  unnecessarily  long 
doubtless,  and  devoted  to  the  elaboration  of  points  that  were  not  always 
of  the  first  magnitude,  but  on  the  whole  the  debates  in  that  body,  especi- 
ally that  upon  the  railroad  rate  bill,  displayed  a  very  high  order  of  ability. 
Some  of  the  strongest  men  in  the  Senate  had  previously  been  members 
of  the  House,  where  they  had  passed  unrecognized  by  the  public  at  any- 
thing like  their  real  value.  Men  who  had  served  in  the  House  with  Mr. 
Bailey,  for  instance,  knew  that  he  was  a  man  of  rare  talent;  but  the 
newspapers,  which  generally  employed  themselves  in  ridiculing  him  at 
that  period  of  his  career,  made  the  discovery  after  he  became  a  member 
of  the  Senate  that  he  was  a  debater  of  commanding  ability. 

The  House  did  not  lack  in  able  men.  It  chose  as  Speaker  the  most 
picturesque  character  in  current  American  politics,  a  very  efficient  pre- 
siding officer,  but  seen  at  his  best  in  debate  upon  the  floor  of  the  House. 
The  floor  leaders  of  the  majority  were  Payne,  the  chairman  of  Ways  and 
Means,  and  Dalzell  and  Grosvenor  of  the  Committee  on  Rules;  and 
when  to  these  are  added  Hepburn,  Hitt,  Williams,  Littlefield,  Burton, 
Clark,  Cockran,  Russell,  and  others  whom  space  forbids  to  name  and 
whom  not  to  name  seems  invidious,  there  is  presented  a  variety  of  talent 
that  would  add  strength  to  any  legislative  chamber  in  the  world.  Ninety 
men,  the  number  of  the  membership  of  the  Senate,  might  be  chosen  from 
the  House,  and  in  aggregate  of  ability  they  would  equal  the  present 
Senate. 

The  bill  for  free  trade  with  the  Philippine  Islands  passed  the  House, 
but  failed  in  the  Senate.  It  was  supported  by  the  Democrats  generally 
and  by  a  majority  of  the  Republicans,  but  it  encountered  the  opposition 
of  a  formidable  contingent  of  Republican  members  who  came  chiefly 
from  the  agricultural  states,  and  feared  that  the  unrestricted  competition 
of  Philippine  sugars  would  have  an  adverse  effect  upon  our  beet  sugar 
industry.  As  an  economic  measure  simply,  little  could  be  said  in  its 
favor  save  from  the  standpoint  of  absolute  free  trade,  for  no  people  in 
the  world  differ  from  us  more  widely  in  their  social  system,  standard  of 
wages  and  of  living,  and  in  industrial  conditions  generally.  From  con- 
siderations of  commerce  and  industry  alone,  there  is  scarcely  a  country 
in  the  world  with  which  we  should  not  more  quickly  have  free  trade 
than  with  the  Philippine  Islands.  And  as  to  their  importance  to  us  as 
customers,  the  grandiloquent  prophecies  so  freely  indulged  in,  in  1898 
and  1899,  about  the  markets  for  our  products  that  we  were  about  to 
conquer,  become  for  the  first  time  impressive  when  we  read  them  to-day 
in  the  light  of  that  magnificent  total  of  $6,000,000  of  exports,  which  we 
have  at  last  been  able  to  attain  after  eight  years  of  benevolent  assimila- 
tion, to  say  nothing  of  reconcentration  and  war.  But  from  the  stand- 


476  AMERICAN   FEDERAL   GOVERNMENT 

point  of  justice  the  measure  was  irresistible.  Having  forcibly  taken  from 
them  and  arrogated  to  ourselves  the  power  of  deciding  what  taxes  those 
people  should  pay,  having  levied  in  all  their  ports  our  own  high  duties 
against  other  nations,  and  especially  against  those  nations  with  which 
they  would  naturally  trade,  it  would  not  merely  be  unjust,  it  would  be 
inhuman,  for  us  to  deny  them  the  benefits  of  the  system  of  which  we 
had  imposed  upon  them  all  the  burdens.  They  should  have  nothing 
less  than  free  trade  with  this  country  until  we  shall  again  remember  our 
own  history  and  reestablish  the  principles  upon  which  our  government 
was  founded.  When  that  time  shall  come,  the  people  of  those  islands 
will  decide  for  themselves  what  taxes  they  shall  pay. 

The  most  important  measure  of  the  session  from  an  industrial  stand- 
point was  the  "denatured"  alcohol  bill,  so  called,  as  if  the  prime  object 
of  nature  in  making  alcohol  was  to  provide  a  beverage.  The  bill  removed 
the  entire  tax  from  alcohol  which  had  been  rendered  undrinkable,  so 
that  this  important  agent  in  the  arts  might  be  used  with  comparative 
freedom.  The  tax  remains  as  it  was  before  upon  alcohol  which  might 
be  used  for  drink.  Free  alcohol  in  the  arts  was  a  feature  of  the  tariff  act 
of  1894,  but  Mr.  Carlisle,  then  Secretary  of  the  Treasury,  found  difficulty 
in  preparing  regulations  which  would  clearly  separate  alcohol  used  in 
the  arts  from  that  used  as  a  beverage,  and  prevent  frauds  upon  the 
treasury ;  and  the  provision,  although  the  law  of  the  land,  was  never  put 
in  force.  But  some  foreign  countries  have  successfully  employed  the 
device  of  mingling  with  the  alcohol  substances  that  would  render  it 
poisonous  or.  revolting  to  the  human  stomach,  and  have  thus  baffled  the 
ingenuity  of  those  who  would  sell  it  for  drink.  The  legislation  of  the 
last  session  was  based  upon  the  experience  of  those  countries,  and  it 
cannot  fail  to  have  a  most  important  effect.  Free  alcohol  in  the  arts  lies 
almost  at  the  basis  of  industrial  Germany,  which  employs  it  to  the 
extent  of  75,000,000  gallons  a  year.  Our  own  tax  of  $2.18  on  each 
gallon  was  practically  prohibitive,  and  in  those  important  manufac- 
tures which  depended  upon  its  use  we  were  at  the  mercy  of  our  rivals. 
The  possibilities  of  the  employment  of  alcohol  in  producing  light,  heat, 
and  power  are  also  enormous,  as  gallon  for.  gallon  it  has  a  far  greater 
potency  than  the  best  grade  of  refined  petroleum,  and  need  not  much, 
if  at  all,  exceed  it  in  price.  The  only  opposition  to  the  bill  came  from 
the  wood  alcohol  interests,  but  as  the  use  of  that  article  even  in  the  arts 
is  attended  with  danger  to  life  and  health,  no  reason  appeared  for 
taxing  for  its  benefit  a  more  efficient  and  safer  rival  product,  and  the 
bill  passed  by  a  nearly  unanimous  vote. 

The  pure  food  bill  was  designed  to  prevent  the  transportation  across 
state  lines  of  adulterated,  deleterious,  and  misbranded  foods,  and  the 
chief  instrumentality  created  to  accomplish  this  purpose  was  a  system 
of  federal  inspection  supported  by  penalties  of  varying  degrees  of  severity. 
The  bill  was  based  upon  an  enlarged,  and  possibly  an  unjustifiable,  con- 


LEGISLATIVE   PROBLEMS  477 

struction  of  the  commerce  clause  of  the  Constitution,  just  as  the  taxing 
power  has  been  amplified  and  often  employed,  not  to  provide  revenue, 
but  for  purposes  essentially  foreign  to  it,  and  to  regulate,  suppress,  and 
promote  business  and  industry.  The  passage  of  the  bill  was  largely  due 
to  Mr.  Hepburn,  chairman  of  the  Committee  on  Inter-State  and  Foreign 
Commerce,  under  whose  leadership  it  had,  in  a  modified  form,  passed  the 
House  of  Representatives  in  a  previous  congress.  The  most  valuable 
portion  of  the  legislation  is  that  aimed  at  the  traffic  in  patent  medicines 
containing  deadly  poisons  covered  by  false  and  attractive  labels,  —  a 
form  of  industry  which  all  the  resources  of  federal  and  state  law  might 
well  be  employed  to  suppress. 

Of  the  same  general  character  as  the  pure  food  law  was  the  meat 
inspection  amendment  to  the  Agricultural  Appropriation  Bill.  The 
methods  of  preparing  animal  food  even  in  the  best  regulated  home 
kitchens  would  not  always  seem  appetizing,  if  reported  with  a  too  close 
attention  to  detail,  lit  up  by  a  sufficient  play  of  fancy.  But  the  colossal 
slaughter  houses  of  Chicago,  however  well  conducted,  would  inevitably 
afford  a  field  for  the  higher  imagination,  which,  if  properly  exercised, 
would  turn  the  stomach  of  an  Esquimau.  But  it  is  sufficient  to  say  with 
regard  to  this  amendment  that  it  was  not  at  all  necessary  to  nauseate  a 
nation,  and  strike  down  for  the  time  an  important  foreign  trade,  in 
order  to  obtain  an  enactment  which  the  great  packers  themselves  may 
well  have  been  eager  to  secure.  For,  in  addition  to  the  benefit  of  the 
certificate  of  purity,  placed  upon  their  product  at  the  expense  of  the 
Government,  the  law  will  tend  to  drive  out  of  the  interstate  and  foreign 
trade  some  of  those  establishments  which  are  too  small  to  occupy  an 
inspector,  and  will  thus  still  further  centralize  the  industry. 

The  legislation  to  which  I  have  just  been  referring  illustrates  very  well 
the  striking  principle  dominating  the  work  of  the  entire  session.  Con- 
gress was  apparently  animated  by  a  profound  faith  in  the  infallibility  of 
federal  supervision.  That  the  federal  inspector  was  made  of  the  same 
stuff  as  the  state  inspector,  that  some  of  the  most  sweeping  financial 
swindles  of  the  age,  some  of  the  most  appalling  disasters  upon  the  ocean, 
occurred  under  a  system  of  direct  federal  supervision,  were  facts  that 
either  were  lost  sight  of  entirely  or  were  not  regarded  of  the  first  conse- 
quence. And  it  is  probably  correct  to  say  that  Congress  was  responsive 
to  the  popular  opinion  of  the  moment.  It  is  a  most  attractive  way  of 
dealing  with  an  evil,  not  for  one  to  fight  it  himself  and  face  the  disgusting 
details,  nor  for  the  community  which  is  immediately  affected  to  combat 
it,  but  to  call  upon  the  great  central  deity  at  Washington.  What  more 
powerful  f ulmination  can  there  be  against  crime  than  a  federal  statute  ? 
Against  this  magnificent  device  the  old-fashioned  notion  of  keeping  power 
near  the  people  has  little  weight.  The  inhabitant  of  a  city  sees  the  water 
works  which  have  been  stolen,  he  knows  the  aldermen  who  helped  to 
carry  them  away,  and  within  fair  limits  he  can  reach  a  just  conclusion 


478  AMERICAN   FEDERAL   GOVERNMENT 

upon  the  questions  of  guilt  or  innocence,  and  whether  the  law  has  been 
justly  enforced.  But  the  distance  of  the  Washington  stage  is  suited  to 
sleight-of-hand  and  the  red  fire  of  the  tableaux,  and  it  matters  not  that 
the  guilty  may  be  dramatically  absolved  and  the  innocent  attacked,  and 
that  mere  suspicion  or  laudation  may  more  easily  take  the  place  of  proof, 
if  only  the  central  performer  on  the  stage  is  willing  to  work  the  machinery 
of  justice  for  political  ends.  The  unknown  and  the  distant  have  an 
obvious  advantage  over  the  near  and  the  commonplace,  for  they  strongly 
appeal  to  the  imagination. 

Excessive  federal  supervision  of  course  disregards  the  boundaries  that 
have  been  established  between  the  national  and  state  governments,  and 
by  centralizing  authority  more  and  more  at  a  greater  distance  from  the 
mass  of  the  people  it  causes  power  when  exercised  to  strike  with  a  heavier 
incidence,  just  as  a  falling  body  acquires  momentum  and  strikes  the 
harder  the  farther  it  has  fallen.  But  still  worse,  it  tends  to  establish  a 
relation  between  the  government  and  the  individual  which  ought  never 
to  exist,  and  which  leads  him  to  rely  upon  the  government  to  do  those 
things  which  he  should  do  for  himself.  The  debate  upon  the  appropria- 
tion for  the  geological  survey  well  illustrates  this  tendency.  When  once 
an  executive  bureau  has  been  established  it  is  the  well-settled  rule  for  it, 
not  merely  to  "grow  up  with  the  country,"  but  to  expand  with  far  greater 
rapidity  than  the  country's  growth.  In  reaching  out  for  an  enlarged 
jurisdiction  it  not  infrequently  duplicates  the  work  already  performed 
by  some  other  bureau.  If  a  special  appropriation  is  granted  it  for  a 
temporary  work,  the  temporary  appropriation  is  apt  to  grow  into  a  fixed 
or  an  increasing  annual  charge  upon  the  Treasury.  The  splendid  propor- 
tions to  which  the  appropriations  for  the  geological  survey  have  grown 
showed  that  that  excellent  bureau  was  no  exception  to  this  rule.  A  few 
years  ago  a  special  work  of  testing  such  substances  as  fuels  and  building 
materials  was  put  in  the  charge  of  this  bureau.  This  special  work  was 
established  in  connection  with  the  St.  Louis  Exposition,  which,  of  course, 
has  passed  into  history.  But  it  was  proposed  on  an  appropriation  bill 
at  the"  last  session  to  continue  this  work,  which  was  not  the  testing  of 
materials  and  fuels  upon  the  public  domain,  but  of  materials  and  fuels 
belonging  to  private  individuals.  It  proposed  to  have  the  government  do 
something  at  its  own  expense  which  the  individual  had  in  times  past 
done  for  himself  and  done  very  successfully.  But  from  the  debase  one 
would  perceive  the  greatly  superior  way  in  which  a  private  work  could 
be  performed  by  men  holding  an  office  under  the  government,  —  and 
at  its  cost ;  he  would  wonder  that  we  had  on  the  whole  made  some  prog- 
ress upon  individual  initiative,  and  that  the  telephone,  the  telegraph, 
and  the  other  marvels  of  invention  had  not  first  been  brought  to  light 
by  men  in  the  classified  service  or  wearing  a  federal  uniform;  and 
listening  to  the  debate,  he  would  have  marveled  still  more  when  he  re- 
called some  government  institution,  —  the  naval  observatory  for  instance, 


LEGISLATIVE   PROBLEMS  479 

with  its  wonderful  equipment  of  telescopes  and  other  instruments,  its 
large  and  talented  staff  paid  by  the  government  to  explore  the  heavens, 
and  its  magnificent  appropriation,  —  and  remembered  that  —  omitting 
one  rare  man  —  its  discoveries  would  not  compare  in  importance  with 
those  of  some  half-starved  college  professor  in  charge  of  a  meagre  and 
poorly  equipped  observatory  upon  some  New  England  hillside.  A 
noteworthy  feature  of  the  incident  was  that  the  appropriation  was  favored 
by  conspicuous  members  of  the  party  claiming  as  its  own  the  time- 
honored  creed  that  the  government  which  governs  best  governs  least. 

I  have  referred  to  the  efficiency  of  the  present  Congress  in  the  expendi- 
ture of  public  money.  The  total  appropriations  of  the  session  amounted 
to  $880,000,000,  and  if  the  appropriations  for  the  Panama  Canal  and 
on  account  of  the  public  debt  are  deducted,  there  will  still  remain  nearly 
$800,000,000,  as  the  cost  of  running  all  the  departments  of  government 
for  a  single  year,  including  the  post  office.  It  may  perhaps  be  urged 
that  appropriations  amounting  in  all  to  $35,000,000,  to  cover  deficiencies 
in  previous  years,  should  also  be  deducted;  but  deficiency  has  become 
a  regular  feature  of  our  budget,  and,  if  we  may  judge  from  the  precedents, 
Congress  at  a  future  time  will  be  called  upon  to  provide  for  the  defici- 
encies of  the  current  fiscal  year.  This  total  of  $800,000,000  of  annual 
expenditure  is  about  $300,000,000  greater  than  the  corresponding  ex- 
penditures for  the  first  fiscal  year  of  the  McKinley  administration.  This 
astounding  increase  of  about  sixty  per  cent  in  the  period  of  nine  years 
demands  some  scrutiny  and  explanation. 

An  analysis  of  the  appropriations  will  show  that  much  the  larger  part 
of  the  entire  increase  is  due  to  our  vastly  greater  expenditures  for  military 
purposes.  That  our  appropriations  for  these  purposes  might  be  some- 
what lessened  with  safety  is  doubtless  true,  but  the  greater  part  of  the 
increase  is  the  necessary  consequence  of  the  policy  of  empire  and  glory 
upon  which  we  entered  at  the  conclusion  of  the  Spanish  War.  That 
policy  affected  the  United  States  no  more  profoundly  in  the  principles 
of  its  government  than  in  its  military  problem.  In  1898  a  great  ocean 
separated  our  territory  from  every  nation  that  might  make  itself  formid- 
able to  us  in  war.  If  prior  to  that  year  Japan,  for  instance,  had  desired 
to  attack  us  she  would  have  been  compelled  to  bring  her  war  ships,  with 
their  limited  steaming  radius,  and  her  armies,  across  the  Pacific,  and  to 
fight  *s  upon  the  American  side  of  that  sea  —  a  task  she  could  not  hope 
successfully  to  perform.  And  the  hopelessness  of  the  undertaking  would 
have  made  it  practically  certain  that  she  would  never  attempt  it.  But 
to-day,  if  she  determined  to  attack  us,  all  she  would  need  to  do  would  be 
to  seize  some  little  island  of  ours  lying  at  her  own  doors,  and  we  should 
be  compelled  to  cross  the  Pacific  to  give  her  battle;  for  as  a  practical 
question,  I  think  no  one  doubts  that  the  United  States  in  the  present 
temper  of  its  people  would  defend  the  least  of  its  possessions  from  forcible 
capture.  In  other  words,  our  "world  power"  statesmen  at  a  stroke  of 


480  AMERICAN   FEDERAL   GOVERNMENT 

the  pen  converted  this  superb  ocean  rampart  into  a  rampart  for  a  pos- 
sible foe,  which  it  would  be  necessary  for  us  to  cross  for  the  purposes  of 
defending  our  own  territory.  Since  then  we  have  rendered  ourselves  so 
vulnerable  to  attack,  it  would  scarcely  be  the  part  of  wisdom  to  rely 
entirely  upon  the  pacific  intentions  of  other  nations  and  permit  an  abject 
military  weakness  to  appeal  too  strongly  to  their  warlike  ambition. 

A  further  scrutiny  of  the  appropriations  will  also  bring  to  light  the 
fact  that  there  has  been  a  very  considerable  increase  in  the  cost  of  running 
the  machinery  of  civil  government,  made  necessarily  large  by  the  steady 
encroachment  of  the  national  government.  The  plea  that  our  national 
expenditure  on  the  basis  of  population  is  less  than  that  of  some  of  the 
other  great  powers  contains  an  obvious  fallacy.  It  does  not  take  into 
the  account  the  federated  character  of  our  system.  Our  state  and  muni- 
cipal governments  support  the  weight  of  public  education,  of  construct- 
ing and  maintaining  roads,  furnishing  protection  against  fire,  providing 
the  courts  which  decide  the  great  mass  of  controversies,  and  maintaining 
the  internal  peace  and  order.  The  people  of  Massachusetts,  for  instance, 
tax  themselves  each  year  about  $25  per  capita  in  order  to  carry  out  these 
great  purposes  of  government  which  are  partly  or  wholly  performed  by 
the  more  centralized  governments  of  foreign  nations.  When  all  our 
governmental  expenditures  are  taken  into  account  there  is  not  more  than 
one  great  foreign  power,  if,  indeed,  there  is  a  single  one,  that  can  vie  with 
us  in  amount  of  taxation. 

Undoubtedly  the  most  important  enactment  of  the  session,  judged  by 
the  effort  expended  to  secure  its  passage,  and  by  that  feature  of  the  legis- 
lation from  which  it  took  its  name,  was  the  Railroad  Rate  Bill.1  No 
subject  in  our  recent  politics  has  been  talked  about  more  vaguely  nor 
been  less  understood  than  the  precise  form  of  the  railroad  question  in- 
volved in  the  bill.  It  would  not  be  an  exaggeration  to  say  that  public 
opinion,  the  argument  upon  the  subject  in  the  first  presidential  message, 
and  the  body  of  the  debate,  were  directed  to  a  point  which  was  absolutely 
unrelated  to  the  controverted  principle  of  the  bill.  Every  feature  of  the 
legislation  which  might  tend  to  prevent  or  punish  discrimination  by 
railroads  could  have  been  passed  without  debate  and  by  unanimous 
consent ;  but  when  government  rate-making  was  put  forth  as  a  cure  for 
discrimination  there  was  presented  an  economic  non-sequitur,  so  pal- 
pable as  not  to  stand  the  test  of  a  moment's  serious  thought.  %. 

To  understand  the  situation  more  clearly,  and  to  discover  how  far, 
if  at  all,  the  rate-making  provision  of  the  bill  responded  to  any  evil 
related  to  it  and  to  any  well-developed  public  opinion,  it  will  be  neces- 
sary to  revert  to  the  session  before  the  last,  when  the  subject  first  en- 
gaged the  attention  of  Congress.  In  his  annual  message  in  December, 
1904,  the  President  dealt  at  length  with  the  evils  of  discrimination  and 
the  giving  of  rebates  by  railroads,  and  concluded  by  proposing  as  a 

1  Mr.  McCall  was  one  of  the  few  Congressmen  who  voted  against  this  bill. 


LEGISLATIVE   PROBLEMS  481 

remedy  that  authority  be  conferred  upon  the  interstate  commission, 
when  a  given  rate  was  complained  of,  to  establish  a  new  rate  which 
should  have  effect  immediately  and  stand  until  set  aside  by  the  courts. 
There  was  undoubtedly  a  strong  public  sentiment  at  that  time  against 
railroad  discrimination,  but  such  sentiment  as  existed  in  favor  of  giving 
the  commission  authority  to  fix  rates  was  confined  to  the  commission 
itself  or  to  isolated  utterances  of  a  few  individuals.  Certainly,  if  one 
looks  for  the  manifestation  of  a  public  opinion  in  favor  of  government 
rate-making  prior  to  the  last  presidential  election,  in  the  important  news- 
papers, the  platforms  of  the  great  parties,  or  the  utterances  of  their 
candidates,  he  will  look  in  vain. 

It  was  pointed  out  very  early  in  the  debate  that  followed  the  introduc- 
tion of  a  rate  bill  in  the  preceding  congress,  that  there  was  no  logical 
relation  between  the  fixing  of  rates  by  the  government  and  the  giving 
of  rebates  or  secret  rates  by  the  railroads.  If  a  governmental  agency 
should  set  aside  a  rate  established  by  a  railroad  and  substitute  another 
for  it,  the  railroad  could  as  easily  give  a  secret  rebate  from  the  new  rate 
as  from  the  one  that  had  been  set  aside.  The  making  of  rates  by  the 
commission  would  do  no  more  to  prevent  rebates,  as  was  said  by  Mr. 
Ack worth,  a  leading  British  authority,  than  would  the  reenactment  of 
Magna  Charta.  Senator  Dolliver,  the  leading  Republican  supporter, 
in  the  Senate,  of  government  rate-making,  formally  admitted  during  the 
debate  at  the  last  session  that  it  would  not  prove  a  remedy  for  rebates. 

But  the  recommendation  had  been  made  by  a  Republican  president, 
and  it  at  once  became  party  policy;  it  was  enthusiastically  supported 
by  the  Democratic  party,  with  the  modern  principles  of  which  it  was 
precisely  in  line ;  every  known  instance  of  railroad  favoritism,  the  graft- 
ing of  insurance  officials,  the  magnitude  of  swollen  fortunes,  almost  every 
financial  and  economic  evil  of  the  times  very  naturally  served  the  pur- 
poses of  argument  in  favor  of  a  measure  the  inception  of  which  had  vio- 
lated every  logical  rule,  and  government  rate-making  finally  passed  with 
only  seven  dissenting  votes  in  the  House  and  three  in  the  Senate. 

The  debate  upon  the  bill  will  rank  among  the  notable  congressional 
debates  of  the  generation.  In  the  House,  where  the  rules  and  the  practice 
make  it  easy  to  limit  discussion,  it  was  much  more  brief  than  in  the  Senate 
and  for  that  reason  perhaps  the  speeches  were  devoted  much  less  to 
detail  and  dealt  more  broadly  and  comprehensively  with  the  important 
features  and  the  vital  policy  of  the  bill.  If  the  volume  of  the  debate  in 
the  House  is  reduced  one  half  by  rejecting  the  glowing  anti-corporation 
sentiments  which  might  perhaps  be  expected  in  a  body  whose  members 
were  about  to  come  before  the  people  for  reelection,  there  will  remain  a 
thorough  and  informing  discussion  of  the  bill. 

Most  of  the  speeches  in  the  Senate  ignored  the  broad  economic  and 
constitutional  grounds  of  debate,  and  there  was  an  imposing  display  of 
technical  but  rather  irrelevant  learning.  This  scrutiny  of  detail  resulted 

3' 


482  AMERICAN   FEDERAL   GOVERNMENT 

from  the  rules  of  the  Senate,  which  secure  the  unlimited  right  of  amend- 
ment and  debate.  But  with  the  exception  of  the  court-review  amend- 
ment and  that  prohibiting  common  carriers  from  engaging  in  other  forms 
of  business,  the  contributions  of  the  Senate  to  the  bill  were  not  of  the  first 
importance.  Great  legal  skill  was  shown  in  debating  whether  the  bill 
would  be  constitutional  if  it  did  not  contain  an  express  and  broad  provi- 
sion for  a  court  review,  as  if  the  courts  would  not  protect  all  constitu- 
tional rights  without  the  express  direction  of  Congress.  Whether  the 
bill  attempted  to  delegate  legislative  power  was  a  much  more  robust 
constitutional  point.  This  point  received  little  attention  in  the  Senate 
outside  of  the  masterly  speech  of  Senator  Foraker,  which  in  its  luminous 
treatment  of  the  broad  legal  and  constitutional  questions  involved  was 
the  incomparable  speech  of  the  senatorial  debate.  Admitting  for  the 
purpose  of  argument  that  the  making  of  railroad  rates  was  within  the 
power  of  Congress  to  regulate  commerce  between  the  states,  Congress 
itself  would  have  to  exercise  the  power  and  could  not  delegate  it  to  any 
other  body.  But  it  was  asserted  by  the  friends  of  the  bill  that  in  giving 
the  commission  authority  to  fix  only  such  rates  as  were  just  and  reason- 
able, Congress  established  the  rule  of  rates,  and  that  nothing  was  left 
for  the  commission  but  to  perform  a  merely  ministerial  act  without  the 
exercise  of  any  legislative  discretion.  This  would  seem  equivalent  to 
asserting  that  Congress  itself  does  not  exercise  legislative  discretion  unless 
in  such  acts  as  are  unjust  and  unreasonable.  If  Congress  can  confer 
the  power  to  fix  just  and  reasonable  railroad  rates  upon  a  commission, 
then  it  can  in  the  same  way  confer  any  of  its  other  great  powers,  and 
commissions  may  be  created  to  establish  reasonable  tariff  rates  or  to 
declare  just  wars,  or  to  make  just  and  reasonable  regulations  upon  any 
federal  subject.  The  principle  of  the  bill  would  thus  seem  to  involve 
nothing  less  than  congressional  abdication. 

The  opponents  of  the  bill  contended  that  the  law  should  require  all 
rates  to  be  just  and  reasonable,  and  that  under  such  a  provision  the  indi- 
vidual could  always  secure  redress  in  the  courts  for  any  extortion  by  the 
railroad.  Judging  by  the  readiness  of  juries  to  award  round  verdicts 
against  railroads  for  damages  to  persons  and  property,  it  cannot  be 
doubted  that  the  railroads  would  maintain  a  system  of  unjust  or  pref- 
erential rates  at  the  peril  of  bankruptcy  if  the  individual  should  proceed 
in  the  courts,  which  are  the  forum  where  rights  are  made  practical,  and 
a  government  by  law  is  secured.  If  the  commission  were  endowed  with 
greater  power  to  initiate  proceedings  where  upon  investigation  it  believed 
a  rate  to  be  unjust,  the  practical  remedy  against  excessive  charges  would 
be  more  effective  than  in  the  Hepburn  bill.  The  power  of  testing  every 
rate  exercised  by  judges  scattered  over  the  whole  country  would  in  no 
degree  tend  to  centralization,  but  the  fixing  of  rates  by  a  central  commis- 
sion at  Washington,  whose  members  were  appointed  by  the  President, 
and  were  subject  to  removal  by  him  at  any  time,  would  mean  centraliza- 


LEGISLATIVE   PROBLEMS  483 

tion  of  the  worst  character.  For  what  greater  power  could  an  ambitious 
president,  seeking  reelection,  ask  than  the  power,  by  his  coercive  au- 
thority over  the  commission,  to  fix  every  freight  rate  between  the  two 
oceans,  and  to  discriminate  in  favor  of  a  community  whose  vote  he  was 
attempting  to  secure  as  against  a  community  which  was  hopelessly 
antagonistic. 

Fifteen  years  ago  Chief  Justice  Cooley,  then  the  chairman  of  the  com- 
mission, declared  that  the  task  of  fixing  freight  rates  for  the  whole 
country  would  be  a  superhuman  one  for  the  commission  to  perform. 
To-day  the  task  would  be  twice  as  great,  owing  to  the  expansion  of  our 
railroad  system.  Instead,  then,  of  the  flexible  American  system  of  ad- 
justing rates  to  the  demands  of  business  and  the  competition  of  railroads 
and  localities,  any  material  interference  by  the  commission  in  the  making 
of  rates  would  be  likely  to  give  us  the  unyielding  and  wooden  schedules 
characteristic  of  bureau  rate-making  abroad;  and  instead  of  the  low 
long-distance  rate  which  has  enabled  the  most  remote  parts  of  our 
country  to  trade  with  one  another  and  has  been  responsible  for  the 
settlement  of  the  interior  portions  of  the  Union,  we  should  need  to  pre- 
pare ourselves,  if  foreign  experience  is  of  any  weight,  to  witness  a  rate 
based  upon  distance  which  would  be  fatal  to  the  long-distance  traffic. 
An  important  practical  safeguard  against  the  chief  evils  of  commission 
rate-making  so  far  as  the  railroads  are  concerned  will  be  found  in  the 
fact  that  their  task,  as  Chief  Justice  Cooley  said,  is  superhuman,  and 
therefore  impossible  of  performance,  and  in  the  sweeping  provision  for 
a  court  review. 

So  far  as  the  prevention  of  discrimination  is  involved  it  is  noteworthy 
that  there  is  nothing  in  the  bill  which  approaches  in  its  definite  and 
sweeping  terms  the  Elkins  Law,  which  had  been  upon  the  statute  books 
nearly  two  years  before  the  rate-making  programme  was  proposed,  and 
which  had  never  been  seriously  enforced.  There  was  nothing  of  mystery 
about  this  statute.  It  required  no  profound  legal  knowledge,  but  only 
the  ability  to  read,  to  discover  in  its  provisions  the  most  comprehensive 
remedy  for  rebates,  both  against  the  railroad  which  gave  and  the  shipper 
who  received  them.  The  effective  proceedings  against  discrimination 
instituted  under  the  Elkins  Act  during  the  last  six  months,  which  have 
almost  uniformly  been  upheld  by  the  courts,  make  it  certain  that  if  that 
act  had  been  enforced  prior  to  the  President's  first  recommendation  for 
commission  rate-making,  the  recommendation,  if  made  at  all,  would 
have  been  based  upon  some  other  ground  than  the  prevention  of  rebates 
and  discrimination.  And  as  there  was  at  that  time  no  general  complaint 
that  railroad  charges  were  excessive,  the  recommendation  would  probably 
never  have  been  made  at  all. 

The  work  of  the  Congress  is,  of  course,  not  yet  complete,  although  it 
is  not  probable  that  important  legislation  of  a  general  character  will  be 
secured  at  the  short  session.  The  Immigration  bill,  which  has  passed 


484  AMERICAN   FEDERAL   GOVERNMENT 

both  houses  in  different  forms  and  is  now  in  conference,  may  be  enacted. 
The  situation  in  Cuba  may  demand  legislative  action,  which  it  is  to  be 
hoped  will  not  destroy  the  independence  of  the  little  republic,  in  line 
with  those  flamboyant  speeches  which  were  made  for  Philippine  annexa- 
tion, and  are  now  being  repeated.  But  almost  the  whole  time  of  the  ten 
weeks'  session  will  be  required  for  the  passage  of  the  great  annual  supply 
bills. 

I  have  referred  to  those  features  of  the  record  of  the  session  which 
seemed  to  me  of  the  chief  importance.  It  remains  for  me  to  suggest  an 
obvious  question  of  a  general  character,  and  not  related  to  any  particular 
measure.  Did  the  course  of  legislation  show  that  enlarged  participation 
of  the  executive  in  the  work  of  Congress,  the  tendency  towards  which 
had  been  witnessed  in  recent  years  ?  To  this  question  I  imagine  only  a 
single  answer  will  be  given.  The  influence  of  the  executive  upon  legisla- 
tion is  to-day  by  no  means  confined  to  those  common  constitutional 
methods  of  expression,  the  veto  and  the  message  recommending  legisla- 
tion, but  it  is  chiefly  shown  by  an  influence  exerted  upon  the  individual 
members,  upon  the  legislative  machinery  of  the  two  houses,  and  even  by 
special  messages  upon  amendments  proposed  to  particular  bills,  which 
in  effect  amount  to  written  speeches  upon  the  mere  details  and  phrase- 
ology of  measures,  and  are  read  in  that  House  in  which  the  debate  is  pro- 
ceeding. There  are  concentrated  in  the  person  of  the  President  the  great 
authority  of  the  party  leadership  and  the  far  greater  practical  authority 
which  results  from  the  vast  powers  of  his  office,  of  which  by  no  means  the 
least  important,  and  certainly  the  most  corrupting,  is  the  control  of  the 
patronage.  Unless  there  is  a  scrupulous  and  restrained  exercise  of  these 
enormous  powers,  the  presidential  office  becomes  a  formidable  engine 
for  throwing  the  whole  mechanism  of  the  Constitution  out  of  gear.  The 
practical  absorption  of  the  great  prerogatives  of  Congress  has  gone  as 
far  as  it  can  be  permitted  to  go  with  safety  to  our  system  of  government. 

After  all  the  laudations  upon  mere  rapidity  of  motion  without  regard 
to  direction,  and  the  supreme  importance  of  "doing  things,"  with  dis- 
crimination as  to  the  character  of  the  "things"  a  secondary  matter, 
something  still  remains  to  be  said  in  favor  of  parliamentary  institutions, 
which  in  Great  Britain  and  in  this  country  have  furnished  the  world 
with  the  best  models  of  free  government.  One  representative  will  be 
slow,  over-cautious,  and  never  disposed  to  action;  another  will  be  all 
impulse,  and  in  reaching  his  conclusions  will  scorn  to  indulge  in  the 
process  of  thought ;  but  in  a  great  body  of  representatives  the  influence 
of  extremes  will  be  largely  nullified  and  a  comparatively  safe  average 
will  be  struck.  But  where  you  have  a  government  of  one  man,  it  is  apt 
to  be  a  government  by  fits  and  starts,  depending  rather  upon  individual 
traits  than  upon  the  law.  If  your  ruler  is  ultra-conservative,  your  govern- 
ment may  never  move  at  all.  If  he  is  erratic  and  emotional,  ready  to 


LEGISLATIVE   PROBLEMS  485 

settle  over  night  the  problems  that  have  vexed  the  ages,  you  will  have  a 
government  of  instability,  and  the  great  ship  will  be  sailed,  not  by  the 
charts  and  the  settled  currents  of  opinion,  but  like  a  cat-rigged  boat, 
trimmed  to  catch  every  whiff  of  wind  that  may  at  the  moment  be  blow- 
ing. At  a  time  when  Parliamentary  institutions  are  becoming  more 
powerful  in  Europe,  and  our  people  are  looking  with  extreme  sympathy 
upon  the  attempt  in  Russia  to  establish  a  duma,  it  is  significant  that  we 
should  be  regarding  with  silence  and  apparent  unconcern  a  movement  in 
the  direction  of  the  practical  obliteration  of  the  Congress  of  the  United 
States,  and  that  we  should  apparently  be  turning  our  faces  away  from 
those  nations  with  which  we  are  most  closely  allied  in  civilization  and 
ranging  ourselves  by  the  side  of  those  South  American  countries  where 
congresses  and  even  courts  employ  themselves  in  registering  executive 
decrees.  And  although  it  must  be  confessed  that  executive  government 
is  likely  to  afford  a  loftier  stage  for  the  exhibition  of  those  arts  with  which 
the  rapidly  increasing  breed  of  political  acrobats  and  sword-swallowers 
may  thrill  the  galleries  of  the  country,  the  American  people  are  not  yet 
ready  consciously  to  adopt  such  a  system  however  entertaining  it  might 
be.  The  clear  and  general  understanding  of  the  danger  will  provide  a 
certain  remedy. 


FEDERAL  CONTROL  OF  CORPORATIONS 

[When  the  government  of  the  United  States  was  founded,  business  was 
carried  on  almost  entirely  by  individuals  acting  singly  or  in  partnerships. 
The  government  then  dealt  practically  only  with  natural  persons,  corporate 
action  being  rather  the  exception.  In  our  own  age  important  business  matters 
are  carried  on  almost  entirely  through  corporations.  The  relation  of  the  gov- 
ernment to  these  artificial  creations  of  the  law,  which  have  nevertheless  de- 
veloped an  exceedingly  strong  vitality,  is  one  of  the  most  important  problems 
of  the  day.  This  is  true  especially  since  corporations  have  through  the  process 
of  concentration  extended  their  field  of  activity  over  the  entire  national  territory, 
so  that  the  states  can  not  effectively  control  their  action.  The  problems  thus 
arising  are  dealt  with  in  the  following  selections.] 


FROM  PRESIDENT  ROOSEVELT'S  MESSAGE  OF  DECEMBER,  1906 

THE  present  Congress  has  taken  long  strides  in  the  direction  of  securing 
proper  supervision  and  control  by  the  National  Government  over  cor- 
porations engaged  in  interstate  business  —  and  the  enormous  majority 
of  corporations  of  any  size  are  engaged  in  interstate  business.  The  pas- 
sage of  the  railway  rate  bill,  and  only  to  a  less  degree  the  passage  of  the 
pure  food  bill,  and  the  provision  for  increasing  and  rendering  more 


486  AMERICAN  FEDERAL   GOVERNMENT 

effective  national  control  over  the  beef-packing  industry,  mark  an  im- 
portant advance  in  the  proper  direction.  In  the  short  session  it  will 
perhaps  be  difficult  to  do  much  further  along  this  line;  and  it  may  be 
best  to  wait  until  the  laws  have  been  in  operation  for  a  number  of  months 
before  endeavoring  to  increase  their  scope,  because  only  operation  will 
show  with  exactness  their  merits  and  their  shortcomings  and  thus  give 
opportunity  to  define  what  further  remedial  legislation  is  needed.  Yet 
in  my  judgment  it  will  in  the  end  be  advisable  in  connection  with  the 
packing-house  inspection  law  to  provide  for  putting  a  date  on  the  label 
and  for  charging  the  cost  of  inspection  to  the  packers.  All  these  laws 
have  already  justified  their  enactment.  The  interstate  commerce  law, 
for  instance,  has  rather  amusingly  falsified  the  predictions,  both  of  those 
who  asserted  that  it  would  ruin  the  railroads  and  of  those  who  asserted 
that  it  did  not  go  far  enough  and  would  accomplish  nothing.  During 
the  last  five  months  the  railroads  have  shown  increased  earnings  and 
some  of  them  unusual  dividends ;  while  during  the  same  period  the  mere 
taking  effect  of  the  law  has  produced  an  unprecedented,  a  hitherto  un- 
heard-of, number  of  voluntary  reductions  in  freights  and  fares  by  the 
railroads.  Since  the  founding  of  the  Commission  there  has  never  been 
a  time  of  equal  length  in  which  anything  like  so  many  reduced  tariffs 
have  been  put  into  effect.  On  August  27,  for  instance,  two  days 
before  the  new  law  went  into  effect,  the  Commission  received  notices 
of  over  five  thousand  separate  tariffs  which  represented  reductions  from 
previous  rates. 

It  must  not  be  supposed,  however,  that  with  the  passage  of  these  laws 
it  will  be  possible  to  stop  progress  along  the  line  of  increasing  the  power 
of  the  National  Government  over  the  use  of  capital  in  interstate  com- 
merce. For  example,  there  will  ultimately  be  need  of  enlarging  the 
powers  of  the  Interstate  Commerce  Commission  along  several  different 
lines,  so  as  to  give  it  a  larger  and  more  efficient  control  over  the  railroads. 

It  can  not  too  often  be  repeated  that  experience  has  conclusively 
shown  the  impossibility  of  securing  by  the  actions  of  nearly  half  a  hun- 
dred different  State  legislatures  anything  but  ineffective  chaos  in  the  way 
of  dealing  with  the  great  corporations  which  do  not  operate  exclusively 
within  the  limits  of  any  one  State.  In  some  method,  whether  by  a  na- 
tional license  law  or  in  other  fashion,  we  must  exercise,  and  that  at  an 
early  date,  a  far  more  complete  control  than  at  present  over  these  great 
corporations  —  a  control  that  will  among  other  things  prevent  the  evils 
of  excessive  overcapitalization,  and  that  will  compel  the  disclosure  by 
each  big  corporation  of  its  stockholders  and  of  its  properties  and  business, 
whether  owned  directly  or  through  subsidiary  or  affiliated  corporations. 
This  will  tend  to  put  a  stop  to  the  securing  of  inordinate  profits  by  favored 
individuals  at  the  expense  whether  of  the  general  public,  the  stockholders, 
or  the  wage  workers.  Our  effort  should  be  not  so  much  to  prevent  con- 
solidation as  such,  but  so  to  supervise  and  control  it  as  to  see  that  it 


LEGISLATIVE  PROBLEMS  487 

results  in  no  harm  to  the  people.  The  reactionary  or  ultraconservative 
apologists  for  the  misuse  of  wealth  assail  the  effort  to  secure  such  control 
as  a  step  toward  socialism.  As  a  matter  of  fact  it  is  these  reactionaries 
and  ultraconservatives  who  are  themselves  most  potent  in  increasing 
socialistic  feeling.  One  of  the  most  efficient  methods  of  averting  the 
consequences  of  a  dangerous  agitation,  which  is  80  per  cent  wrong,  is 
to  remedy  the  20  per  cent  of  evil  as  to  which  the  agitation  is  well  founded. 
The  best  way  to  avert  the  very  undesirable  move  for  the  governmental 
ownership  of  railways  is  to  secure  by  the  Government  on  behalf  of  the 
people  as  a  whole  such  adequate  control  and  regulation  of  the  great  inter- 
state common  carriers  as  will  do  away  with  the  evils  which  give  rise  to 
agitations  against  them.  So  the  proper  antidote  to  the  dangerous  and 
wicked  agitation  against  the  men  of  wealth  as  such  is  to  secure  by  proper 
legislation  and  executive  action  the  abolition  of  the  grave  abuses  which 
actually  do  obtain  in  connection  with  the  business  use  of  wealth  under 
our  present  system  —  or  rather  no  system  —  of  failure  to  exercise  any 
adequate  control  at  all.  Some  persons  speak  as  if  the  exercise  of  such 
governmental  control  would  do  away  with  the  freedom  of  individual 
initiative  and  dwarf  individual  effort.  This  is  not  a  fact.  It  would  be  a 
veritable  calamity  to  fail  to  put  a  premium  upon  individual  initiative, 
individual  capacity  and  effort ;  upon  the  energy,  character,  and  foresight 
which  it  is  so  important  to  encourage  in  the  individual.  But  as  a  matter 
of  fact  the  deadening  and  degrading  effect  of  pure  socialism,  and  especi- 
ally of  its  extreme  form  communism,  and  the  destruction  of  individual 
character  which  they  would  bring  about,  are  in  part  achieved  by  the 
wholly  unregulated  competition  which  results  in  a  single  individual  or 
corporation  rising  at  the  expense  of  all  others  until  his  or  its  rise  effectu- 
ally checks  all  competition  and  reduces  former  competitors  to  a  position 
of  utter  inferiority  and  subordination. 

In  enacting  and  enforcing  such  legislation  as  this  Congress  already 
has  to  its  credit,  we  are  working  on  a  coherent  plan,  with  the  steady 
endeavor  to  secure  the  needed  reform  by  the  joint  action  of  the  moderate 
men,  the  plain  men  who  do  not  wish  anything  hysterical  or  dangerous, 
but  who  do  intend  to  deal  in  resolute  common-sense  fashion  with  the  real 
and  great  evils  of  the  present  system.  The  reactionaries  and  the  violent 
extremists  show  symptoms  of  joining  hands  against  us.  Both  assert, 
for  instance,  that  if  logical,  we  should  go  to  government  ownership  of 
railroads  and  the  like ;  the  reactionaries,  because  on  such  an  issue  they 
think  the  people  would  stand  with  them,  while  the  extremists  care  rather 
to  preach  discontent  and  agitation  than  to  achieve  solid  results.  As  a 
matter  of  fact,  our  position  is  as  remote  from  that  of  the  Bourbon  reaction- 
ary as  from  that  of  the  impracticable  or  sinister  visionary.  We  hold  that 
the  Government  should  not  conduct  the  business  of  the  nation,  but  that 
it  should  exercise  such  supervision  as  will  insure  its  being  conducted  in 
the  interest  of  the  nation.  Our  aim  is,  so  far  as  may  be,  to  secure,  for  all 


488  AMERICAN   FEDERAL   GOVERNMENT 

decent,  hard  working  men,  equality  of  opportunity  and  equality  of 
burden. 

The  actual  working  of  our  laws  has  shown  that  the  effort  to  prohibit 
all  combination,  good  or  bad,  is  noxious  where  it  is  not  ineffective.  Com- 
bination of  capital  like  combination  of  labor  is  a  necessary  element  of 
our  present  industrial  system.  It  is  not  possible  completely  to  prevent 
it;  and  if  it  were  possible,  such  complete  prevention  would  do  damage 
to  the  body  politic.  What  we  need  is  not  vainly  to  try  to  prevent  all 
combination,  but  to  secure  such  rigorous  and  adequate  control  and  sup- 
ervision of  the  combinations  as  to  prevent  their  injuring  the  public,  or 
existing  in  such  form  as  inevitably  to  threaten  injury  —  for  the  mere  fact 
that  a  combination  has  secured  practically  complete  control  of  a  neces- 
sary of  life  would  under  any  circumstances  show  that  such  combination 
was  to  be  presumed  to  be  adverse  to  the  public  interest.  It  is  unfor- 
tunate that  our  present  laws  should  forbid  all  combinations,  instead  of 
sharply  discriminating  between  those  combinations  which  do  good  and 
those  combinations  which  do  evil.  Rebates,  for  instance,  are  as  often 
due  to  the  pressure  of  big  shippers  (as  was  shown  in  the  investigation  of 
the  Standard  Oil  Company  and  as  has  been  shown  since  by  the  investiga- 
tion of  the  tobacco  and  sugar  trusts)  as  to  the  initiative  of  big  railroads. 
Often  railroads  would  like  to  combine  for  the  purpose  of  preventing  a 
big  shipper  from  maintaining  improper  advantages  at  the  expense  of 
small  shippers  and  of  the  general  public.  Such  a  combination,  instead 
of  being  forbidden  by  law,  should  be  favored.  In  other  words,  it  should 
be  permitted  to  railroads  to  make  agreements,  provided  these  agree- 
ments were  sanctioned  by  the  Interstate  Commerce  Commission  and 
were  published.  With  these  two  conditions  complied  with  it  is  impossible 
to  see  what  harm  such  a  combination  could  do  to  the  public  at  large. 
It  is  a  public  evil  to  have  on  the  statute  books  a  law  incapable  of  full 
enforcement  because  both  judges  and  juries  realize  that  its  full  enforce- 
ment would  destroy  the  business  of  the  country ;  for  the  result  is  to  make 
decent  railroad  men  violators  of  the  law  against  their  will,  and  to  put  a 
premium  on  the  behavior  of  the  wilful  wrongdoers.  Such  a  result  in 
turn  tends  to  throw  the  decent  man  and  the  wilful  wrongdoer  into  close 
association,  and  in  the  end  to  drag  down  the  former  to  the  latter's  level ; 
for  the  man  who  becomes  a  lawbreaker  in  one  way  unhappily  tends  to 
lose  all  respect  for  law  and  to  be  willing  to  break  it  in  many  ways.  No 
more  scathing  condemnation  could  be  visited  upon  a  law  than  is  con- 
tained in  the  words  of  the  Interstate  Commerce  Commission  when,  in 
commenting  upon  the  fact  that  the  numerous  joint  traffic  associations 
do  technically  violate  the  law,  they  say:  "The  decision  of  the  United 
States  Supreme  Court  in  the  Trans-Missouri  case  and  the  Joint  Traffic 
Association  case  has  produced  no  practical  effect  upon  the  railway 
operations  of  the  country.  Such  associations,  in  fact,  exist  now  as  they 
did  before  these  decisions,  and  with  the  same  general  effect.  In  justice 


LEGISLATIVE   PROBLEMS  489 

to  all  parties,  we  ought  probably  to  add  that  it  is  difficult  to  see  how  our 
interstate  railway  could  be  operated  with  due  regard  to  the  interest  of 
the  shipper  and  the  railway  without  concerted  action  of  the  kind  afforded 
through  these  associations." 

This  means  that  the  law  as  construed  by  the  Supreme  Court  is  such 
that  the  business  of  the  country  can  not  be  conducted  without  breaking 
it.  I  recommend  that  you  give  careful  and  early  consideration  to  this 
subject,  and,  if  you  find  the  opinion  of  the  Interstate  Commerce  Com- 
mission justified,  that  you  amend  the  law  so  as  to  obviate  the  evil 
disclosed. 


FROM  PRESIDENT  ROOSEVELT'S  MESSAGE  OF  DECEMBER,  1907 

"In  order  to  insure  a  healthy  social  and  industrial  life,  every  big  corporation 
should  be  held  responsible  by,  and  be  accountable  to,  some  sovereign  strong 
enough  to  control  its  conduct.  I  am  in  no  sense  hostile  to  corporations.  This 
is  an  age  of  combination,  and  any  effort  to  prevent  all  combination  will  be  not 
only  useless,  but  in  the  end  vicious,  because  of  the  contempt  for  law  which  the 
failure  to  enforce  law  inevitably  produces.  We  should,  moreover,  recognize 
in  cordial  and  ample  fashion  the  immense  good  effected  by  corporate  agencies 
in  a  country  such  as  ours,  and  the  wealth  of  intellect,  energy,  and  fidelity  de- 
voted to  their  service,  and  therefore  normally  to  the  service  of  the  public,  by 
their  officers  and  directors.  The  corporation  has  come  to  stay,  just  as  the  trade 
union  has  come  to  stay.  Each  can  do  and  has  done  great  good.  Each  should 
be  favored  so  long  as  it  does  good.  But  each  should  be  sharply  checked  where 
it  acts  against  law  and  justice. 

"...  The  makers  of  our  National  Constitution  provided  especially  that 
the  regulation  of  interstate  commerce  should  come  within  the  sphere  of  the 
General  Government.  The  arguments  in  favor  of  their  taking  this  stand  were 
even  then  overwhelming.  But  they  are  far  stronger  to-day,  in  view  of  the 
enormous  development  of  great  business  agencies,  usually  corporate  in  form. 
Experience  has  shown  conclusively  that  it  is  useless  to  try  to  get  any  adequate 
regulation  and  supervision  of  these  great  corporations  by  State  action.  Such 
regulation  and  supervision  can  only  be  effectively  exercised  by  a  sovereign 
whose  jurisdiction  is  coextensive  with  the  field  of  work  of  the  corporations  — 
that  is,  by  the  National  Government.  I  believe  that  this  regulation  and  super- 
vision can  be  obtained  by  the  enactment  of  law  by  the  Congress.  .  .  .  Our 
steady  aim  should  be  by  legislation,  cautiously  and  carefully  undertaken,  but 
resolutely  persevered  in,  to  assert  the  sovereignty  of  the  National  Government 
by  affirmative  action. 

"This  is  only  in  form  an  innovation.  In  substance  it  is  merely  a  restoration ; 
for  from  the  earliest  time  such  regulation  of  industrial  activities  has  been 
recognized  in  the  action  of  the  lawmaking  bodies ;  and  all  that  I  propose  is  to 
meet  the  changed  conditions  in  such  manner  as  will  prevent  the  Commonwealth 
abdicating  the  power  it  has  always  possessed,  not  only  in  this  country,  but  also 
in  England  before  and  since  this  country  became  a  separate  nation. 

"It  has  been  a  misfortune  that  the  National  laws  on  this  subject  have 


490  AMERICAN   FEDERAL   GOVERNMENT 

hitherto  been  of  a  negative  or  prohibitive  rather  than  an  affirmative  kind,  and 
still  more  that  they  have  in  part  sought  to  prohibit  what  could  not  be  effectively 
prohibited,  and  have  in  part  in  their  prohibitions  confounded  what  should  be 
allowed  and  what  should  not  be  allowed.  It  is  generally  useless  to  try  to 
prohibit  all  restraint  on  competition,  whether  this  restraint  be  reasonable  or 
unreasonable ;  and  where  it  is  not  useless  it  is  generally  hurtful. .  .  .  The 
successful  prosecution  of  one  device  to  evade  the  law  immediately  develops 
another  device  to  accomplish  the  same  purpose.  What  is  needed  is  not  sweeping 
prohibition  of  every  arrangement,  good  or  bad,  which  may  tend  to  restrict 
competition,  but  such  adequate  supervision  and  regulation  as  will  prevent  any 
restriction  of  competition  from  being  to  the  detriment  of  the  public,  as  well  as 
such  supervision  and  regulation  as  will  prevent  other  abuses  in  no  way  con- 
nected with  restriction  of  competition." 

I  have  called  your  attention  in  these  quotations  to  what  I  have  already 
said  because  I  am  satisfied  that  it  is  the  duty  of  the  National  Govern- 
ment to  embody  in  action  the  principles  thus  expressed. 

No  small  part  of  the  trouble  that  we  have  conies  from  carrying  to  an 
extreme  the  national  virtue  of  self-reliance,  of  independence  in  initiative 
and  action.  It  is  wise  to  conserve  this  virtue  and  to  provide  for  its 
fullest  exercise,  compatible  with  seeing  that  liberty  does  not  become  a 
liberty  to  wrong  others.  Unfortunately,  this  is  the  kind  of  liberty  that 
the  lack  of  all  effective  regulation  inevitably  breeds.  The  founders  of 
the  Constitution  provided  that  the  National  Government  should  have 
complete  and  sole  control  of  interstate  commerce.  There  was  then  prac- 
tically no  interstate  business  save  such  as  was  conducted  by  water,  and 
this  the  National  Government  at  once  proceeded  to  regulate  in  thorough- 
going and  effective  fashion.  Conditions  have  now  so  wholly  changed 
that  the  interstate  commerce  by  water  is  insignificant  compared  with  the 
amount  that  goes  by  land,  and  almost  all  big  business  concerns  are  now 
engaged  in  interstate  commerce.  As  a  result,  it  can  be  but  partially  and 
imperfectly  controlled  or  regulated  by  the  action  of  any  one  of  the  sev- 
eral States;  such  action  inevitably  tending  to  be  either  too  drastic  or 
else  too  lax,  and  in  either  case  ineffective  for  the  purposes  of  justice. 
Only  the  National  Government  can  in  throughgoing  fashion  exercise 
the  needed  control.  This  does  not  mean  that  there  should  be  any  exten- 
sion of  Federal  authority,  for  such  authority  already  exists  under  the 
Constitution  in  amplest  and  most  far-reaching  form;  but  it  does  mean 
that  there  should  be  an  extension  of  Federal  activity.  This  is  not 
advocating  centralization.  It  is  merely  looking  facts  in  the  face,  and 
realizing  that  centralization  in  business  has  already  come  and  can  not 
be  avoided  or  undone,  and  that  the  public  at  large  can  only  protect  itself 
from  certain  evil  effects  of  this  business  centralization  by  providing 
better  methods  for  the  exercise  of  control  through  the  authority  already 
centralized  in  the  National  Government  by  the  Constitution  itself.  There 
must  be  no  halt  in  the  healthy  constructive  course  of  action  which  this 


LEGISLATIVE   PROBLEMS  491 

Nation  has  elected  to  pursue,  and  has  steadily  pursued,  during  the 
last  six  years,  as  shown  both  in  the  legislation  of  the  Congress  and  the 
administration  of  the  law  by  the  Department  of  Justice.  The  most 
vital  need  is  in  connection  with  the  railroads.  As  to  these,  in  my  judg- 
ment there  should  now  be  either  a  national  incorporation  act  or  a  law 
licensing  railway  companies  to  engage  in  interstate  commerce  upon  cer- 
tain conditions.  The  law  should  be  so  framed  as  to  give  to  the  Inter- 
state Commerce  Commission  power  to  pass  upon  the  future  issue  of 
securities,  while  ample  means  should  be  provided  to  enable  the  Com- 
mission, whenever  in  its  judgment  it  is  necessary,  to  make  a  physical 
valuation  of  any  railroad.  As  I  stated  in  my  message  to  the  Congress  a 
year  ago,  railroads  should  be  given  power  to  enter  into  agreements,  sub- 
ject to  these  agreements  being  made  public  in  minute  detail  and  to  the  con- 
sent of  the  Interstate  Commerce  Commission  being  first  obtained.  Until 
the  National  Government  assumes  proper  control  of  interstate  commerce, 
in  the  exercise  of  the  authority  it  already  possesses,  it  will  be  impossible 
either  to  give  to  or  to  get  from  the  railroads  full  justice.  The  railroads 
and  all  other  great  corporations  will  do  well  to  recognize  that  this  control 
must  come;  the  only  question  is  as  to  what  governmental  body  can 
most  wisely  exercise  it.  The  courts  will  determine  the  limits  within 
which  the  Federal  authority  can  exercise  it,  and  there  will  still  remain 
ample  work  within  each  State  for  the  railway  commission  of  that  State ; 
and  the  National  Interstate  Commerce  Commission  will  work  in  har- 
mony with  the  several  State  commissions,  each  within  its  own  province, 
to  achieve  the  desired  end. 

Moreover,  in  my  judgment  there  should  be  additional  legislation  look- 
ing to  the  proper  control  of  the  great  business  concerns  engaged  in  inter- 
state business,  this  control  to  be  exercised  for  their  own  benefit  and 
prosperity  no  less  than  for  the  protection  of  investors  and  of  the  general 
public.  As  I  have  repeatedly  said  in  Messages  to  the  Congress  and  else- 
where, experience  has  definitely  shown  not  merely  the  unwisdom  but 
the  futility  of  endeavoring  to  put  a  stop  to  all  business  combinations. 
Modern  industrial  conditions  are  such  that  combination  is  not  only 
necessary  but  inevitable.  It  is  so  in  the  world  of  business  just  as  it  is  so 
in  the  world  of  labor,  and  it  is  as  idle  to  desire  to  put  an  end  to  all  cor- 
porations, to  all  big  combinations  of  capital,  as  to  desire  to  put  an  end 
to  combinations  of  labor.  Corporation  and  labor  union  alike  have  come 
to  stay.  Each,  if  properly  managed,  is  a  source  of  good  and  not  evil. 
Whenever  in  either  there  is  evil,  it  should  be  promptly  held  to  account ; 
but  it  should  receive  hearty  encouragement  so  long  as  it  is  properly 
managed.  It  is  profoundly  immoral  to  put  or  keep  on  the  statute  books 
a  law,  nominally  in  the  interest  of  public  morality,  that  really  puts  a 
premium  upon  public  immorality,  by  undertaking  to  forbid  honest  men 
from  doing  what  must  be  done  under  modern  business  conditions,  so 
that  the  law  itself  provides  that  its  own  infraction  must  be  the  condition 


492  AMERICAN   FEDERAL   GOVERNMENT 

precedent  upon  business  success.  To  aim  at  the  accomplishment  of  too 
much  usually  means  the  accomplishment  of  too  little,  and  often  the 
doing  of  positive  damage. 

As  I  have  elsewhere  said: 

"All  this  is  substantially  what  I  have  said  over  and  over  again.  Surely  it 
ought  not  to  be  necessary  to  say  that  it  in  no  shape  or  way  represents  any 
hostility  to  corporations  as  such.  On  the  contrary,  it  means  a  frank  recognition 
of  the  fact  that  combinations  of  capital,  like  combinations  of  labor,  are  a  natu- 
ral result  of  modern  conditions  and  of  our  National  development.  As  far  as 
in  my  ability  lies  my  endeavor  is  and  will  be  to  prevent  abuse  of  power  by  either 
and  to  favor  both  so  long  as  they  do  well.  The  aim  of  the  National  Govern- 
ment is  quite  as  much  to  favor  and  protect  honest  corporations,  honest  business 
men  of  wealth,  as  to  bring  to  justice  those  individuals  and  corporations  repre- 
senting dishonest  methods.  Most  certainly  there  will  be  no  relaxation  by  the 
Government  authorities  in  the  effort  to  get  at  any  great  railroad  wrecker  — 
any  man  who  by  clever  swindling  devices  robs  investors,  oppresses  wage- 
workers,  and  does  injustice  to  the  general  public.  But  any  such  move  as  this 
is  in  the  interest  of  honest  railway  operators,  of  honest  corporations,  and  of 
those  who,  when  they  invest  their  small  savings  in  stocks  and  bonds,  wish  to  be 
assured  that  these  will  represent  money  honestly  expended  for  legitimate  busi- 
ness purposes.  To  confer  upon  the  National  Government  the  power  for  which 
I  ask  would  be  a  check  upon  overcapitalization  and  upon  the  clever  gamblers 
who  benefit  by  overcapitalization.  But  it  alone  would  mean  an  increase  in  the 
value,  an  increase  in  the  safety  of  the  stocks  and  bonds  of  law-abiding,  honestly 
managed  railroads,  and  would  render  it  far  easier  to  market  their  securities. 
I  believe  in  proper  publicity.  There  has  been  complaint  of  some  of  the  in- 
vestigations recently  carried  on,  but  those  who  complain  should  put  the  blame 
where  it  belongs —  upon  the  misdeeds  which  are  done  in  darkness  and  not 
upon  the  investigations  which  brought  them  to  light.  The  Administration  is 
responsible  for  turning  on  the  light,  but  it  'is  not  responsible  for  what  the  light 
showed.  I  ask  for  full  power  to  be  given  the  Federal  Government,  because  no 
single  State  can  by  legislation  effectually  cope  with  these  powerful  corporations 
engaged  in  interstate  commerce,  and,  while  doing  them  full  justice,  exact  from 
them  in  return  full  justice  to  others.  The  conditions  of  railroad  activity,  the 
conditions  of  our  immense  interstate  commerce,  are  such  as  to  make  the  Cen- 
tral Government  alone  competent  to  exercise  full  supervision  and  control. 

"The  grave  abuses  in  individual  cases  of  railroad  management  in  the  past 
represent  wrongs  not  merely  to  the  general  public,  but,  above  all,  wrongs  to 
fair-dealing  and  honest  corporations  and  men  of  wealth,  because  they  excite  a 
popular  anger  and  distrust  which  from  the  very  nature  of  the  case  tends  to  in- 
clude in  the  sweep  of  its  resentment  good  and  bad  alike.  From  the  standpoint 
of  the  public  I  cannot  too  earnestly  say  that  as  soon  as  the  natural  and  proper 
resentment  aroused  by  these  abuses  becomes  indiscriminate  and  unthinking, 
it  also  becomes  not  merely  unwise  and  unfair,  but  calculated  to  defeat  the  very 
ends  which  those  feeling  it  have  in  view.  There  has  been  plenty  of  dishonest 
work  by  corporations  in  the  past.  There  will  not  be  the  slightest  let-up  in  the 
effort  to  hunt  down  and  punish  every  dishonest  man.  But  the  bulk  of  our 
business  is  honestly  done.  In  the  natural  indignation  the  people  feel  over  the 


LEGISLATIVE   PROBLEMS  493 

dishonesty,  it  is  all  essential  that  they  should  not  lose  their  heads  and  get  drawn 
into  an  indiscriminate  raid  upon  all  corporations,  all  people  of  wealth,  whether 
they  do  well  or  ill.  Out  of  any  such  wild  movement  good  will  not  come,  can  not 
come,  and  never  has  come.  On  the  contrary,  the  surest  way  to  invite  reaction 
is  to  follow  the  lead  of  either  demagogue  or  visionary  in  a  sweeping  assault 
upon  property  values  and  upon  public  confidence,  which  would  work  incalcul- 
able damage  in  the  business  world  and  would  produce  such  distrust  of  the  agi- 
tators that  in  the  revulsion  the  distrust  would  extend  to  honest  men  who,  in 
sincere  and  sane  fashion,  are  trying  to  remedy  the  evils." 

The  antitrust  law  should  not  be  repealed ;  but  it  should  be  made  both 
more  efficient  and  more  in  harmony  with  actual  conditions.  It  should 
be  so  amended  as  to  forbid  only  the  kind  of  combination  which  does 
harm  to  the  general  public,  such  amendment  to  be  accompanied  by,  or 
to  be  an  incident  of,  a  grant  of  supervisory  power  to  the  Government 
over  these  big  concerns  engaged  in  interstate  business.  This  should  be 
accompanied  by  provision  for  the  compulsory  publication  of  accounts 
and  the  subjection  of  books  and  papers  to  the  inspection  of  the  Govern- 
ment officials.  A  beginning  has  already  been  made  for  such  supervi- 
sion by  the  establishment  of  the  Bureau  of  Corporations. 

The  antitrust  law  should  not  prohibit  combinations  that  do  no  injus- 
tice to  the  public,  still  less  those  the  existence  of  which  is  on  the  whole 
of  benefit  to  the  public.  But  even  if  this  feature  of  the  law  were  abol- 
ished, there  would  remain  as  an  equally  objectionable  feature  the 
difficulty  and  delay  now  incident  to  its  enforcement.  The  Government 
must  now  submit  to  irksome  and  repeated  delay  before  obtaining  a 
final  decision  of  the  courts  upon  proceedings  instituted  and  even  a 
favorable  decree  may  mean  an  empty  victory.  Moreover,  to  attempt  to 
control  these  corporations  by  lawsuits  means  to  impose  upon  both  the 
Department  of  Justice  and  the  courts  an  impossible  burden;  it  is  not 
feasible  to  carry  on  more  than  a  limited  number  of  such  suits.  Such  a 
law  to  be  really  effective  must  of  course  be  administered  by  an  executive 
body,  and  not  merely  by  means  of  lawsuits.  The  design  should  be  to 
prevent  the  abuses  incident  to  the  creation  of  unhealthy  and  improper 
combinations,  instead  of  waiting  until  they  are  in  existence  and  then 
attempting  to  destroy  them  by  civil  or  criminal  proceedings. 

A  combination  should  not  be  tolerated  if  it  abuse  the  power  acquired 
by  combination  to  the  public  detriment.  No  corporation  or  association 
of  any  kind  should  be  permitted  to  engage  in  foreign  or  interstate  com- 
merce that  is  formed  for  the  purpose  of,  or  whose  operations  create,  a 
monopoly  or  general  control  of  the  production  sale,  or  distribution  of 
any  one  or  more  of  the  prime  necessities  of  life  or  articles  of  general  use 
and  necessity.  Such  combinations  are  against  public  policy;  they  vio- 
late the  common  law ;  the  doors  of  the  courts  are  closed  to  those  who  are 
parties  to  them,  and  I  believe  the  Congress  can  close  the  channels  of 
interstate  commerce  against  them  for  its  protection.  The  law  should 


494  AMERICAN  FEDERAL   GOVERNMENT 

make  its  prohibitions  and  permissions  as  clear  and  definite  as  possible, 
leaving  the  least  possible  room  for  arbitrary  action,  or  allegation  of  such 
action,  on  the  part  of  the  Executive,  or  of  divergent  interpretations  by 
the  courts.  Among  the  points  to  be  aimed  at  should  be  the  prohibition 
of  unhealthy  competition,  such  as  by  rendering  service  at  an  actual  loss 
for  the  purpose  of  crushing  out  competition,  the  prevention  of  inflation 
of  capital,  and  the  prohibition  of  a  corporation's  making  exclusive  trade 
with  itself  a  condition  of  having  any  trade  with  itself.  Reasonable 
agreements  between,  or  combinations  of,  corporations  should  be  per- 
mitted, provided  they  are  first  submitted  to  and  approved  by  some 
appropriate  Government  body. 

The  Congress  has  the  power  to  charter  corporations  to  engage  in 
interstate  and  foreign  commerce,  and  a  general  law  can  be  enacted 
under  the  provisions  of  which  existing  corporations  could  take  out  Fed- 
eral charters  and  new  Federal  corporations  could  be  created.  An  essen- 
tial provision  of  such  a  law  should  be  a  method  of  predetermining  by 
some  Federal  board  or  commission  whether  the  applicant  for  a  Federal 
charter  was  an  association  or  combination  within  the  restrictions  of  the 
Federal  law.  Provision  should  also  be  made  for  complete  publicity  in 
all  matters  affecting  the  public  and  complete  protection  to  the  investing 
public  and  the  shareholders  in  the  matter  of  issuing  corporate  securities. 
If  an  incorporation  law  is  not  deemed  advisable,  a  license  act  for  big  in- 
terstate corporations  might  be  enacted ;  or  a  combination  of  the  two  might 
be  tried.  The  supervision  established  might  be  analogous  to  that  now 
exercised  over  national  banks.  At  least,  the  antitrust  act  should  be 
supplemented  by  specific  prohibitions  of  the  methods  which  experience 
has  shown  have  been  of  most  service  in  enabling  monopolistic  combina- 
tions to  crush  out  competition.  The  real  owners  of  a  corporation  should 
be  compelled  to  do  business  in  their  own  name.  The  right  to  hold 
stock  in  other  corporations  should  hereafter  be  denied  to  interstate  cor- 
porations, unless  on  approval  by  the  proper  Government  officials,  and  a 
prerequisite  to  such  approval  should  be  the  listing  with  the  Government 
of  all  owners  and  stockholders,  both  by  the  corporation  owning  such 
stock  and  by  the  corporation  in  which  such  stock  is  owned. 

To  confer  upon  the  National  Government,  in  connection  with  the 
amendment  I  advocate  in  the  antitrust  law,  power  of  supervision  over 
big  business  concerns  engaged  in  interstate  commerce,  would  benefit 
them  as  it  has  benefited  the  national  banks.  In  the  recent  business 
crisis  it  is  noteworthy  that  the  institutions  which  failed  were  institu- 
tions which  were  not  under  the  supervision  and  control  of  the  National 
Government.  Those  which  were  under  National  control  stood  the  test. 

National  control  of  the  kind  above  advocated  would  be  to  the  benefit 
of  every  well-managed  railway.  From  the  standpoint  of  the  public 
there  is  need  for  additional  tracks,  additional  terminals,  and  improve- 
ments in  the  actual  handling  of  the  railroads,  and  all  this  as  rapidly  as 


LEGISLATIVE   PROBLEMS  495 

possible.  Ample,  safe,  and  speedy  transportation  facilities  are  even 
more  necessary  than  cheap  transportation.  Therefore,  there  is  need 
for  the  investment  of  money  which  will  provide  for  all  these  things 
while  at  the  same  time  securing  as  far  as  is  possible  better  wages  and 
shorter  hours  for  their  employees.  Therefore,  while  there  must  be  just 
and  reasonable  regulation  of  rates,  we  should  be  the  first  to  protest 
against  any  arbitrary  and  unthinking  movement  to  cut  them  down  with- 
out the  fullest  and  most  careful  consideration  of  all  interests  concerned 
and  of  the  actual  needs  of  the  situation.  Only  a  special  body  of  men 
acting  for  the  National  Government  under  authority  conferred  upon  it 
by  the  Congress  is  competent  to  pass  judgment  on  such  a  matter. 

Those  who  fear,  from  any  reason,  the  extension  of  Federal  activity 
will  do  well  to  study  the  history  not  only  of  the  national  banking  act, 
but  of  the  pure-food  law,  and  notably  the  meat  inspection  law  recently 
enacted.  The  pure-food  law  was  opposed  so  violently  that  its  passage 
was  delayed  for  a  decade;  yet  it  has  worked  unmixed  and  immediate 
good.  The  meat  inspection  law  was  even  more  violently  assailed;  and 
the  same  men  who  now  denounce  the  attitude  of  the  National  Govern- 
ment in  seeking  to  oversee  and  control  the  workings  of  interstate 
common  carriers  and  business  concerns,  then  asserted  that  we  were  "dis- 
crediting and  ruining  a  great  American  industry."  Two  years  have  not 
elapsed,  and  already  it  has  become  evident  that  the  great  benefit  the  law 
confers  upon  the  public  is  accompanied  by  an  equal  benefit  to  the  repu- 
table packing  establishments.  The  latter  are  better  off  under  the  law 
than  they  were  without  it.  The  benefit  to  interstate  common  carriers 
and  business  concerns  from  the  legislation  I  advocate  would  be  equally 
marked. 

Incidentally,  in  the  passage  of  the  pure-food  law  the  action  of  the 
various  State  food  and  dairy  commissioners  showed  in  striking  fashion 
how  much  good  for  the  whole  people  results  from  the  hearty  cooperation 
of  the  Federal  and  State  officials  in  securing  a  given  reform.  It  is  prima- 
rily to  the  action  of  these  State  commissioners  that  we  owe  the  enact- 
ment of  this  law;  for  they  aroused  the  people,  first  to  demand  the 
enactment  and  enforcement  of  State  laws  on  the  subject,  and  then 
the  enactment  of  the  Federal  law,  without  which  the  State  laws  were 
largely  ineffective.  There  must  be  the  closest  cooperation  between  the 
National  and  State  governments  in  administering  these  laws. 


PRESIDENT  ROOSEVELT  AND  THE  TRUSTS 1 
BY  S.  J.  MCLEAN 

THE  framers  of  the  Constitution  of  the  United  States,  fearing  to  place 
wide  powers  and  unlimited  sovereignty  in  the  hands  of  the  Federal  Gov- 
1  The  Quarterly  Review,  July,  1907. 


496  AMERICAN   FEDERAL   GOVERNMENT 

ernment,  specified  the  powers  granted  to  the  central  authority,  the 
powers  not  so  granted  being  reserved  either  to  the  States  or  to  the  people. 
Under  this  arrangement  the  most  important  powers  possessed  by  Con- 
gress in  regard  to  industry  are  conferred  by  the  interstate  commerce 
clause,  which  empowers  Congress  "to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian  tribes." 
Supplementary  authority  is  derived  from  the  power  to  levy  taxes,  to 
establish  post  offices  and  post-roads,  and  to  coin  money.  The  right 
"to  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers  "  must  also  be  read  as  indicating  the 
scope  of  the  Federal  jurisdiction. 

The  commanding  position  of  the  Supreme  Court,  which  is  the  final 
judge  of  all  Federal  legislation,  claims  for  its  decisions  the  closest  atten- 
tion. In  the  famous  series  of  judgments  given,  at  an  early  period  in  the 
Court's  history,  by  Chief  Justice  Marshall,  the  principle  of  giving  a  broad 
construction  of  the  powers  conferred  on  the  Federal  Government  was 
adopted.  Although  there  has  from  time  to  time  been  an  ebb  and  flow, 
dependent  on  the  personnel  of  the  Court,  the  precedents  set  by  Marshall 
have  on  the  whole  been  followed.  It  may  therefore  be  said  that  it  has 
been  the  policy  of  the  Court  to  construe  broadly  the  constitutionality 
of  the  powers  exercised  by  Congress,  while  at  the  same  time  a  technical 
legal  interpretation  has  been  given  to  the  terms  of  the  statutes  under 
which  such  powers  are  exercised.  Under  a  rigid  written  Constitution  — 
for  the  process  of  amendment  provided  is  so  cumbrous  as  to  be  practi- 
cally unavailable  —  the  Supreme  Court  is  the  elastic  portion  of  the 
Constitution  which  provides,  by  implication,  for  the  broadening  of 
power  to  meet  new  exigencies.  In  the  definition  of  constitutionality, 
questions  of  policy,  as  well  as  of  strict  law,  have  their  weight. 

However  correct  in  theory,  from  an  historical  standpoint,  the  strict- 
construction  theory  of  the  Constitution  may  have  been,  it  received  a 
deathblow  from  the  Civil  War.  Though  it  was  not  wholly  true  that  the 
laws  were  silent  while  arms  were  being  borne,  it  was  no  time  for  niceties 
of  construction ;  and  a  national  support  was  given  to  the  broad-construc- 
tion tendencies  of  the  Court.  In  the  Legal-Tender  cases,  which  upheld 
the  constitutionality  of  the  issue  of  inconvertible  paper  with  a  legal- 
tender  attribute,  a  broad  justification  was  found  in  the  necessities  of  war. 
In  the  exercise  of  the  power  to  tax  Congress  has  a  wide  discretion.  A 
tax  may  be  levied  either  for  revenue  or  for  prohibitive  purposes.  When 
Congress,  in  1869,  excluded  State  bank-notes  from  circulation  by  im- 
posing upon  them  a  tax  of  10  per  cent,  the  Court  upheld  this  as  a  legiti- 
mate exercise  of  power,  and  stated  that  "the  judicial  department  can  not 
prescribe  to  the  legislative  department  of  Government  limitations  upon 
the  exercise  of  ^acknowledged  powers."  1 

1  Veazie  Bank  v.  Fenno,  8  Wallace,  U.  S.,  532. 


LEGISLATIVE   PROBLEMS  497 

The  breadth  of  construction  of  the  interstate  commerce  clause  is 
especially  noteworthy.  Marshall's  decision  in  1824,  that  commerce 
includes  not  only  traffic  but  intercourse  as  well,  gave  a  trend  to  more 
recent  decisions;  but  interstate  commerce  was  of  minor  importance  in 
the  earlier  days.  During  the  first  forty  years  of  the  Supreme  Court's 
existence,  only  five  cases  came  before  it  in  which  the  construction  of 
this  clause  was  involved.  With  the  expansion  of  the  railway  system  and 
the  general  industrial  development  of  the  country,  questions  arising 
under  this  head  have  become  increasingly  frequent.  In  1895,  in  a  case 
which  arose  out  of  the  aggression  of  organized  labor  during  the  Chicago 
strike,  it  was  stated: 

The  constitution  has  not  changed.  .  .  .  But  it  operates  to-day  upon  modes 
of  interstate  commerce  unknown  to  the  fathers ;  and  it  will  operate  with  equal 
force  upon  any  new  modes  of  such  commerce  which  the  future  may  develop.1 

When  the  need  of  railway  regulation  was  appreciated,  it  was  under 
the  interstate  commerce  clause  that  regulative  legislation  was  passed. 
This  legislation  was  stoutly  opposed  by  the  railway  interests,  which 
stigmatized  it  as  an  unwarrantable  interference  with  private  industry. 
One  pessimistic  critic  contended  that  it  was  a  movement  towards  cen- 
tralization, and  that  "the  next  natural  step  must  be  the  purchase  and 
absolute  control  by  the  same  power  of  all  this  vast  railroad  property." 
There  were  others  who  argued  that  this  legislation  was  an  unjustifiable 
interference  with  State  activity. 

The  next  exercise  of  power  under  this  clause  was  concerned  with  an 
attempt  to  regulate  industrial  combinations.  In  two  years  one  hundred 
and  thirty-eight  Bills  dealing  with  this  subject  were  introduced  in  Con- 
gress. Finally,  in  1890,  the  anti-trust  legislation  known  as  the  Sherman 
Law  was  passed.  This  was  a  compromise  measure,  and,  like  so  many  of 
the  compromise  measures  passed  by  Congress,  was  inexact  in  phrase- 
ology. It  is  entitled  "an  Act  to  protect  trade  and  commerce  against 
unlawful  restraints  and  monopolies."  This  implies  that  there  are  lawful 
restraints  and  monopolies.  But  the  Act  states  that  "every  contract, 
combination,  in  the  form  of  trust  or  otherwise,  or  conspiracy  in  restraint 
of  trade  or  commerce  among  the  several  States  ...  is  illegal."  While 
"monopolizing  "  is  prohibited,  no  definition  of  this  term  is  given;  and 
it  must  be  remembered  that  "monopolizing"  is  not  a  word  of  legal 
precision. 

The  regulation  of  Trusts  is  complicated  by  the  fact  that  there  is  no 
Federal  corporation  law.  Corporations  engaging  in  interstate  commerce 
do  so  under  a  State  charter.  The  difficulty  thus  presented  is  well  exem- 
plified by  the  United  States  Steel  Corporation.  This  organization 
attracts  attention,  not  only  because  of  its  huge  capitalization,  but  also 
because  of  the  wide  sweep  of  its  business  and  of  its  resources.  This  giant 

1  In  re  Debs,  158  U.  S.,  564. 
32 


498  AMERICAN   FEDERAL   GOVERNMENT 

corporation,  which  is  well  described  by  Dr.  Gutmann  in  the  book  men- 
tioned in  our  list,  is  chartered  under  a  law  of  New  Jersey.  Congress  has 
no  power  over  manufacture  as  such.  In  1895,  in  a  decision  in  an  action 
against  the  Sugar  Trust,  the  Supreme  Court  held  that,  although  a  com- 
bination had  been  formed  controlling  98  per  cent  of  the  sugar-refinery 
of  the  country,  this  did  not  come  within  the  scope  of  the  anti-trust  legis- 
lation. Only  the  consequences  of  combination,  not  the  combination 
itself,  could  be  dealt  with. 

Although  it  was  generally  supposed  that  railways  were  exempt  from 
the  anti-trust  legislation,  since  they  were  already  covered  by  the  Act  to 
regulate  commerce,  some  of  the  most  signal  decisions  have  been  those 
concerned  with  railways.  In  1897  and  in  1898,  in  the  Traffic  Association 
cases,1  organizations  formed  to  maintain  "reasonable"  rates  were  de- 
clared to  be  combinations  to  maintain  rates,  and  therefore  prohibited 
by  the  anti-trust  legislation.  Railways  were  declared  to  be  "  instruments 
of  commerce,"  and  their  business  is  commerce  itself.  This  was  carried 
further  in  the  Northern  Securities  decision  in  1904.  In  this  case  a 
"holding  company  "  of  exceedingly  wide  powers  was  formed  under  a 
New  Jersey  charter.  By  control  of  majority  stock-holdings  in  the  Great 
Northern  and  the  Northern  Pacific,  it  controlled  these  railways  and  their 
subordinate  lines.  Not  one  mile  of  the  railways  concerned  was  situated 
in  the  State  from  which  the  charter  was  obtained.  The  holding  company 
did  not  operate  the  railways;  it  simply  controlled  them  through  its 
majority  holdings.  By  deciding  that  this  company  was  a  combination 
in  restraint  of  trade,  the  Court,  while  avoiding  a  direct  expression  of 
opinion  on  the  subject,  in  reality  decided  that  ownership  of  property 
falls  within  the  scope  of  the  legislation  whenever  such  ownership,  if 
allowed  to  continue,  might  result  in  restraint  of  interstate  commerce. 

The  powers  of  Congress  over  Trusts  under  existing  legislation,  as 
established  by  court  decisions,  are  substantially  as  follows.  The  power 
to  regulate  gives  the  power  to  prohibit;  this  may  be  exercised  either 
under  the  taxing  power  or  under  the  interstate  commerce  clause.  Every 
combination  which  directly  or  necessarily  operates  in  restraint  of  trade 
or  commerce  among  the  several  States  is  illegal.  Railways  engaged  in 
interstate  commerce  are  subject  to  the  anti-trust  Act.  Congress  has  es- 
tablished the  rule  of  free  competition  among  those  engaged  in  interstate 
commerce;  every  combination  which  would  extinguish  competition 
between  otherwise  competing  railways  engaged  in  interstate  commerce, 
and  which  would  in  that  way  restrain  such  commerce,  is  illegal.  The 
provisions  of  the  anti-trust  Act  apply  to  private  manufacturers  or  dealers 
as  well  as  to  corporations.  The  natural  effect  of  competition  is  to 
increase  commerce;  and  an  agreement  whose  direct  effect  is  to  prevent 
this  play  of  competition  restrains  instead  of  promoting  trade  and  com- 
merce. The  legislative  prohibitions  are  not  limited  to  "unreasonable 

1  167  U.  S.,  290,  and  171  U.  S.,  505. 


LEGISLATIVE   PROBLEMS  499 

restraints,"  but  are  directed  against  all  restraints,  whether  reasonable  or 
unreasonable ;  therefore  the  Court  will  not  consider  evidence  in  regard 
to  the  reasonableness  of  the  restraint.  It  is  not  necessary  to  show  that 
a  combination  results  or  will  result  in  a  complete  monopoly;  it  is  only 
essential  to  show  that  by  its  necessary  operation  it  tends  to  restrain  inter- 
state commerce  or  to  create  a  monopoly  in  such  commerce,  and  to  deprive 
the  public  of  the  advantages  that  flow  from  free  competition. 
In  his  message  to  Congress  in  1901,  President  Roosevelt -said : 

In  the  interest  of  the  whole  people  the  nation  should,  without  interfering 
with  the  powers  of  the  States  in  the  matter,  itself  also  assume  powers  of  super- 
vision and  regulation  over  corporations  doing  an  interstate  business. 

In  annual  messages  and  in  addresses  he  has  from  time  to  time  returned 
to  the  subject,  and  in  stronger  terms.  A  large  part  of  the  rising  tide  of 
opposition  to  the  Trusts  and  desire  for  their  adequate  regulation,  arises 
from  the  appreciation  of  their  evils  which  his  educational  campaign  has 
evoked.  At  the  same  time,  when  the  question  of  remedies  arises,  the 
limitations  due  to  his  political  connections  appear.  To  those  who  urge 
that  the  Trust  problem  is  to  be  settled  by  depriving  monopolized  prod- 
ucts of  protection  through  duties,  President  Roosevelt,  in  his  letter  to 
Congressman  Watson,  of  Indiana,  August  20,  1906  —  a  letter  intended 
to  be  used  as  a  campaign  document  —  replied  as  follows : 

The  cry  that  the  problem  can  be  met  by  any  changes  in  the  tariff,  represents, 
consciously  or  unconsciously,  an  effort  to  divert  public  attention  from  the  only 
method  of  taking  regulative  action. 

The  protective  tariff  is  not  so  important  a  factor  in  Trust  preservation 
as  some,  including  Mr.  Bryan,  think;  nor  is  it  a  negligible  quantity,  as 
President  Roosevelt  contends.  While  he  has  become  more  radical  in 
his  attitude  towards  domestic  industry,  he  has  become  more  conserva- 
tive in  regard  to  the  tariff.  He  has  inclined  more  and  more  to  the 
reactionary  attitude  of  the  "  stand  pat  "  section  of  the  Republican  party 
—  a  section  which  fears  that  the  pillars  of  the  existing  edifice  will  be 
pulled  down  if  repairs  are  made  on  the  roof.  This  attitude  was  apparent 
in  the  President's  speech  at  Milwaukee  on  April  3,  1903,  when  he  said 
that  to  regulate  Trusts  through  the  tariff  would  be  to  put  an  end  to  the 
prosperity  of  the  Trusts  by  putting  an  end  to  the  prosperity  of  the 
nation.  The  speech  of  Mr.  Roosevelt's  lieutenant,  Mr.  Taft,  Secretary 
of  War,  at  Bath,  Maine,  on  Sept.  5,  1906  may  be  taken  as  summarizing 
the  President's  position. 

It  is  impracticable,  by  a  revision  of  the  tariff,  to  destroy  Trusts.  The  effect 
which  a  protective  tariff  has  in  aid  of  Trusts  is  a  partial  exclusion  or  hampering 
of  foreign  competition  in  articles  manufactured  by  Trusts,  thus  narrowing  the 
competition  to  be  met  and  overcome  by  illegal  Trust  methods ;  but  the  principle 


500  AMERICAN  FEDERAL   GOVERNMENT 

of  excluding  or  burdening  foreign  competition  with  home  competition  is  the 
protective  system.  .  .  .  The  question  presented  is  whether  it  is  wiser  to  main- 
tain the  benefits  of  the  protective  system,  and  deal  with  the  evils  of  the  manage- 
ment of  Trusts  by  specific  legislation  directed  to  those  evils,  or,  in  an  attempt 
to  curb  Trusts,  to  pull  down  the  whole  protective  system. 

To  the  President  the  Trust  problem  is  one  of  domestic  policy.  The 
policy  favored  by  him  and  accepted  by  the  Republican  party,  although 
not  without  protest,  is  summed  up  under  the  words  publicity  and  regu- 
lation. In  his  message  to  the  Legislature  of  New  York  in  1900,  President 
(then  Governor)  Roosevelt  said: 

Supervision  and  publicity  are  needed  quite  as  much  for  the  sake  of  the  honest 
corporations  as  for  the  sake  of  the  public.  The  corporation  that  manages  its 
affairs  honestly  has  a  right  to  demand  protection  against  the  dishonest  cor- 
poration. .  .  .  The  first  essential  is  knowledge  of  the  facts —  publicity. 

Under  legislation  enacted  in  1903,  on  the  recommendation  of  the  Presi- 
dent, provision  was  made  for  publicity  in  regard  to  corporate  affairs  by 
the  establishment  of  a  Bureau  c^f  Corporations,  a  sub-department  of  the 
new  department  of  Commerce  and  Labor.  Mr.  James  R.  Garfield,  a 
son  of  the  late  President  Garfield,  was  appointed  Commissioner  of  Cor- 
porations. He  was  given  power  to  investigate  the  business  of  corpora- 
tions, joint-stock  companies,  or  corporate  combinations  engaged  in 
interstate  commerce ;  and  to  gather  information  to  enable  the  President 
to  make  recommendations  to  Congress  in  regard  to  the  regulation  of 
interstate  commerce.  The  reports  made  to  the  President  are  to  receive 
such  publicity  as  he  may  direct.  Under  this  legislation  investigations  of 
the  conditions  existing  in  the  beef  and  oil  industries  have  been  conducted 
by  Mr.  Garfield.  The  work  of  the  Bureau  of  Corporations  is  primarily 
an  inquiry  into  the  industrial  and  legal  methods  used  by  the  agencies 
engaged  in  interstate  and  foreign  commerce;  and  the  purpose  of  such 
inquiry  is  to  afford  accurate  knowledge  of  the  industrial  conditions  upon 
which  there  may  be  based  intelligent  legislative  action. 

The  power  in  regard  to  regulation  has  been  exercised  under  the  inter- 
state commerce  clause.  While  Mr.  Bryan,  in  his  recent  speech  at  Louis- 
ville, Kentucky,  held  that  strict  regulation  of  the  railways  is  advisable, 
he  at  the  same  time  holds  that  the  country  must  ultimately  accept  gov- 
ernment ownership  in  order  to  escape  not  only  the  corrupting  effect  of 
the  railway  in  politics,  but  also  the  evils  arising  from  extortionate  rates 
and  rebates.  To  President  Roosevelt  government  ownership  is  a  last 
resort.  He  believes  in  railway  regulation;  and  he  has  been  successful 
in  getting  the  Railway  Commission  legislation  strengthened.  He  has 
throughout  held  that,  if  rebating  were  abolished,  much  of  the  strength 
of  the  Trusts  would  disappear. 

Though  the  Interstate  Commerce  Commission  has  contended  almost 


LEGISLATIVE   PROBLEMS  501 

from  the  outset  that  the  power  to  establish  a  reasonable  rate,  when  a 
rate  has  been  found  unreasonable  in  an  action  before  the  Commission, 
is  essential,  its  contention  was  not  taken  seriously  until  President  Roose- 
velt, in  his  annual  message  in  1904,  said: 

As  a  fair  security  to  the  shipper,  the  Commission  should  be  vested  with  the 
power,  when  a  given  rate  is  challenged,  and  after  full  review  found  to  be  un- 
reasonable, to  decide,  subject  to  judicial  review,  what  will  be  a  reasonable  rate 
to  take  its  place. 

As  a  result  of  his  urgent  advocacy,  both  in  1904  and  in  1905,  amendatory 
legislation  was  passed  in  the  last  session  of  Congress.  In  addition  to 
conferring  the  amendatory  rate-making  power,  the  abuses  of  the  "  mid- 
night tariff  "  system  are  prevented  by  requiring  thirty  days'  notice  of 
changes  in  rates,  instead  of  the  shorter  period  formerly  demanded. 
Rebating  in  any  form  is  forbidden ;  and  stringent  penalties  are  provided. 
The  railway  company  which  shall  "offer,  grant,  or  give"  a  rebate  is 
subject  to  a  fine  varying  from  $1000  to  $20,000  for  each  offense;  and 
railway  officials  participating  in  such  an  arrangement  are  punishable  by 
fine,  or  by  fine  and  imprisonment.  The  shipper  who  shall  "solicit, 
accept,  or  receive  "  a  rebate  is  liable  to  similar  penalties.  To  ascertain 
whether  rebates  are  given,  the  Interstate  Commerce  Commission  is  em- 
powered to  appoint  examiners  to  inspect  the  books  of  the  railway  com- 
panies. Further,  in  an  action  dealing  with  rebates,  all  rebates  received 
during  a  period  six  years  prior  to  the  commencement  of  the  action  may 
also  be  dealt  with.  Private  cars  are  also  placed  under  the  supervision 
of  the  Commission. 

Though  the  scope  of  the  anti-trust  Act  was  not  extended  during  the 
last  session  of  Congress,  additional  powers  of  regulation  under  the  inter- 
state commerce  clause  were  granted  in  regard  to  other  matters.  Under 
the  new  meat-inspection  law,  which  became  effective  on  October  i,  1906, 
meat  and  meat-products  can  not  enter  into  interstate  commerce  unless 
they  are  marked  "inspected  and  passed."  The  purpose  of  the  Act  is 
to  prevent  the  use  in  interstate  or  foreign  commerce  of  meat  and  meat- 
products  which  are  unwholesome  or  otherwise  unfit  for  human  food. 
The  determination  of  these  conditions  is  delegated  to  the  Bureau  of 
Animal  Industry,  a  sub-department  of  the  Department  of  Agriculture, 
under  whose  immediate  authority  more  than  six  hundred  inspectors 
have  been  assigned  to  places  in  half  as  many  packing  establishments 
and  railway  shopping  points  in  the  meat-producing  districts.  As  the 
result  of  many  years  agitation,  a  "pure  food  "  law  was  passed,  which 
applies  to  food,  drink,  and  drugs.  For  the  breach  of  the  law  fines  and 
imprisonment  are  provided. 

The  present  is  a  period  of  great  activity  in  the  prosecution  of  Trusts,  not ' 
only  in  the  Federal  field,  but  also  in  the  States.    In  New  York  the  local 
ice  combination  has  been  prosecuted  because  of  artificial  enhancement 


502 


AMERICAN   FEDERAL   GOVERNMENT 


of  prices.  In  the  District  of  Columbia  and  in  the  city  of  Philadelphia 
actions  have  also  been  initiated  against  local  ice  combinations.  In 
Toledo,  Ohio,  the  Circuit  Court  recently  upheld  a  decision,  whereby 
three  ice-dealers,  who  were  convicted  of  violating  the  State  anti-trust 
Act,  were  sentenced  to  fines  of  $2500  and  six  months'  imprisonment  in 
the  work-house.  In  the  same  State,  on  October  19,  the  Standard  Oil  Co. 
was  found  guilty  of  infractions  of  the  State  anti-trust  Act  under  which 
fines  totalling  $5,000,000  may  be  imposed.  An  appeal  has  been  lodged 
against  this  decision. 

But,  while  in  the  States  some  action  has  been  taken  against  the  Trusts, 
it  is  in  the  Federal  field  that  the  greatest  activity  is  shown.  This  activity 
has  been  especially  noteworthy  since  President  Roosevelt's  accession  to 
office.  In  1903  a  special  appropriation  of  $500,000  was  made  by  Con- 
gress to  aid  in  the  enforcement  of  the  anti-trust  law  and  the  Act  to  regu- 
late commerce.  By  legislation  of  the  same  year  provision  was  made  that 
in  suits  under  these  Acts,  when  the  United  States  is  the  complainant  and 
there  is  a  sufficient  public  interest  involved,  the  case  may,  on  the  certifi- 
cate of  the  Attorney- General,  take  precedence  on  the  docket.  This 
power  was  exercised  in  the  Northern  Securities  case.  The  increased 
activity  under  these  laws  is  shown  in  the  following  table  of  original 
proceedings  begun  and  prosecuted: 


Periods 

For  viola- 
tion of  anti- 
trust Act 

For  viola- 
tion of  Act 
to  regulate 

commerce 

Under 

Pres.  Harrison  .... 

7 

i7 

" 

"    Cleveland  .... 

6 

32 

" 

"    McKinley  .... 

3 

12 

"    Roosevelt  .... 

16 

60 

In  the  prosecutions  arising  under  the  interstate  commerce  clause  there 
has  been  a  cooperation  of  the  various  agencies.  Investigations  and  pro- 
ceedings have  been  conducted  by  the  Interstate  Commerce  Commission ; 
prosecutions  under  the  anti-trust  Act  have  been  made  by  the  Department 
of  Justice;  while  investigations  on  which  actions  have  been  based  have 
been  made  by  the  Commissioner  of  Corporations.  Without  attempting 
an  exhaustive  list,  we  may  mention  some  of  the  more  salient  actions. 

In  the  year  1905  a  perpetual  injunction  was  obtained  from  the  Supreme 
Court  against  the  principal  packing  companies,  restraining  them  from 
combining  and  agreeing  on  prices  at  which  their  products  were  to  be 
disposed  of  in  States  other  than  those  of  manufacture.  In  1902  an  injunc- 
tion was  obtained  against  the  Federal  Salt  Company.  This  company 


LEGISLATIVE   PROBLEMS  503 

had  made  arrangements  whereby  other  companies  agreed  neither  to 
import,  buy,  nor  sell  salt  except  from  and  to  the  Federal  Salt  Company, 
and  not  to  engage  in  or  assist  in  the  production  of  salt  west  of  the  Mis- 
sissippi River  during  the  continuation  of  this  contract.  This  arrangement 
had  enhanced  the  price  of  salt  400  per  cent. 

The  decision  in  the  Northern  Securities  case  frustrated  the  attempt 
to  centralize  through  a  holding  company  the  control  of  competing  rail- 
ways. Proceedings  under  the  rebating  section  of  the  railway  legislation 
led  on  June  22,  1906,  to  the  imposition  of  fines  totalling  $75,000  on  four 
of  the  packing  companies  and  the  Chicago,  Burlington,  and  Quincy 
Railway.  Two  individual  defendants  in  New  York,  who  had  received 
rebates,  were  punished  by  fines  and  imprisonment,  the  penalty  being 
$6000  and  four  months'  imprisonment  in  the  first  case,  and  $4000  and 
three  months'  imprisonment  in  the  second.  This  is  the  first  time  that 
rebating  has  actually  been  punished  by  imprisonment;  and  Attorney- 
General  Moody  hopes  that  it  will  have  "the  most  potent  effect  in  check- 
ing the  'widespread  practice  of  unlawful  discriminations."  Early  in 
October  the  New  York  Central  Railway  was  found  guilty  of  granting 
rebates  on  shipments  made  by  the  Sugar  Trust.  An  arrangement  had 
been  entered  into  in  1904  whereby  a  rebate  of  five  cents  per  hundred 
pounds  was  to  be  made.  The  information  which  led  to  this  action  being 
taken  was  collected  in  the  first  instance  by  the  lieutenants  of  Mr.  W.  R. 
Hearst,  and  was  handed  over  by  him  to  the  Attorney-General.  The 
railway  was  fined  $108,000,  or  about  two  dollars  in  fines  for  every  dollar 
which  it  has  recently  received  in  rebates.  The  result  is  excellent ;  there 
is  a  stability  in  railway  rates  that  has  long  been  absent.  So  far,  the  suits 
instituted  by  the  Attorney- General  have  led  to  the  collection  of  over 
$300,000  in  fines,  and  the  imprisonment  of  two  freight  brokers  who 
conspired  to  get  rebates.  President  Roosevelt's  administration  claims 
that  the  enforcement  of  the  law  has  greatly  improved  the  situation ;  and 
that,  to  quote  the  words  of  Secretary  Taft,  "the  fear  of  the  law  has 
been  put  into  the  hearts  of  the  members  of  these  great  corporations." 

The  most  important  of  the  actions  the  Government  now  has  in  hand 
is  that  against  the  Standard  Oil  Co.  It  is  intended  to  proceed  against 
this  company  on  the  ground  that  it  has,  contrary  to  law,  been  receiving 
discriminative  rates.  Investigations  have  been  conducted  by  Federal 
grand  juries  in  Ohio,  New  York,  Kansas,  and  Illinois.  In  August  the 
grand  jury  at  Chicago  returned  ten  indictments,  covering  6428  counts 
against  the  Standard  Oil  Co.  for  receiving  rebates.  These  investigations 
are  simply  preliminary  to  more  general  action  by  the  Government.  In 
addition  to  the  proceedings  in  the  Federal  courts,  the  Interstate  Com- 
merce Commission  is  conducting  investigations  under  a  resolution  of 
Congress  passed  at  its  last  session.  In  November  last,  Attorney-General 
Moody  instituted  an  action  against  the  Standard  Oil  Co.  under  the  anti- 
trust Act.  The  stock  at  once  fell  from  about  700  to  512.  A  favorable 


504  AMERICAN   FEDERAL   GOVERNMENT 

outcome  in  such  a  case  will  mean  a  very  significant  expansion  of  Federal 
power.  In  the  prohibitions  of  the  anti-trust  legislation  no  provision  is 
made  for  a  company  or  a  corporation  which  by  mere  accretion  has  come 
to  control  a  dominating  part  of  a  particular  industry.  The  Standard 
Oil  claims  to  be  a  company,  not  a  combination.  In  an  action  against 
it  there  will  be  involved,  if  its  contention  that  it  is  a  company  is  upheld, 
the  question  whether  a  monopoly  possessed  by  one  company  is  forbidden ; 
and  the  further  question  whether  mere  size,  apart  from  any  overt  act, 
subjects  a  company  to  the  provisions  of  the  anti-trust  legislation.  It  is 
probable  that,  even  with  an  expedited  procedure,  two  years  will  elapse 
before  the  case  is  decided  by  the  Supreme  Court. 

There  is  a  danger  at  the  present  time  that  the  prevailing  fear  of  Trusts 
may  go  too  far.  The  opinion  of  M.  Leroy-Beaulieu,  in  his  "The  United 
States  in  the  Twentieth  Century"  (p.  x),  that  "an  unduly  high  opinion 
has  been  entertained  of  the  dangers  as  well  as  of  the  strength  of  the 
Trusts,  and  of  the  part  they  have  played  in  the  development  of  American 
manufacture,"  is  undoubtedly  justified.  Especial  attention  has  been 
devoted  to  the  public  dangers  arising  from  inflated  capitalization;  but 
time  has  shown  that  this  is  a  weakness  in  the  combinations.  But  the 
days  of  "hands  off"  have  passed;  and  it  is  well  that  it  is  so.  At  the 
same  time  the  division  of  power  between  the  Federal  Government  and 
the  States  renders  difficult  the  work  of  regulation  —  a  work  which,  apart 
from  any  question  of  constitutional  limitations,  has  inherent  difficulties 
—  and  attracts  attention  to  the  limitations  of  the  constitution.  The 
State  Governments,  which  were  intended  to  be  bulwarks  of  private 
right,  have  too  often  been  the  protectors  of  private  greed.  Regulation 
through  the  individual  States  is,  in  default  of  concerted  action,  futile; 
it  means  irritation,  not  control. 

It  may  be  argued  that  it  is  within  the  power  of  Congress  to  pass  an 
incorporation  Act,  and  to  grant  to  corporations  so  chartered  the  right 
to  produce.  But  such  corporations  would  carry  on  their  manufacturing 
within  the  confines  of  some  State  or  States;  they  would  therefore  be 
subject  to  local  regulation  and  taxation.  This  would  involve  radical 
industrial  and  political  changes.  It  is  the  expediency,  rather  than  the 
legality,  of  a  Federal  corporation  law  which  presents  a  difficulty.  The 
President  said,  in  his  Harrisburg  speech, 

It  is  the  narrow  construction  of  the  powers  of  the  national  government  which 
in  our  democracy  has  proved  the  chief  means  of  limiting  the  national  power  to 
cut  out  abuses,  and  which  is  now  the  chief  bulwark  of  the  great  moneyed  inter- 
ests which  oppose  and  dread  any  attempt  to  place  them  under  efficient  govern- 
mental control. 

It  is  on  this  ground  that  he  has  favored  the  placing  of  insurance  under 
national  control,  although  the  Courts  have  repeatedly  decided  that 


LEGISLATIVE  PROBLEMS  505 

insurance  is  not  commerce.  But  in  the  extension  of  powers,  which  he 
favors,  the  Government  will  have  to  proceed  indirectly.  The  most  that 
can  be  expected  in  the  way  of  more  thorough  control  of  corporations  is 
that  they  shall  be  required  to  take  out  licenses  before  engaging  in  inter- 
state commerce.  Under  such  an  arrangement  the  granting  of  licenses 
could  be  made  conditional  on  submission  to  regulation.  Substantially 
this  arrangement  is  involved  in  the  provisions  of  the  recent  meat-inspec- 
tion law,  whose  rigid  provisions  must  be  met,  under  penalty  of  exclusion 
from  interstate  commerce. 

The  weakness  of  the  legislation  passed  under  the  interstate  commerce 
clause  is  patent.  The  an ti- trust  law,  a  hurried  compromise  measure, 
in  its  sweeping  prohibitions,  makes  no  distinction  between  predominat- 
ing industrial  influence  due  to  illicit  favors  or  improper  combinations 
and  that  due  to  legitimate  economic  conditions.  The  Act  to  regulate 
railways  has,  by  its  prohibition  of  pooling  (i.  e.  joint-purse  arrangements), 
accelerated  the  movement  towards  consolidation.  The  Supreme  Court 
has  held  that  the  rule  of  free  competition  laid  down  in  the  anti-trust  Act 
applies  to  railways  as  well.  By  declaring  illegal  all  agreements  to  main- 
tain rates  it  laid  down  a  technical  doctrine  which,  if  upheld  in  its  entirety, 
would  be  subversive  of  business.  Whether  established  formally  or  inform- 
ally, agreements  as  to  rates  are  absolutely  essential.  Such  agreements 
exist  to-day,  and  must  of  necessity  exist ;  and,  in  acting  under  them,  the 
railways  are  in  technical  disobedience  to  the  law. 

In  his  message  to  the  New  York  Legislature  in  1900,  Governor  Roose- 
velt said: 

Much  of  the  legislation  not  only  proposed  but  enacted  against  Trusts  is  not 
one  whit  more  intelligent  than  the  medieval  Bull  against  the  comet,  and  has 
not  been  one  particle  more  effective. 

As  President,  in  his  annual  message  to  Congress  in  1905,  he  said: 

It  is  generally  useless  to  try  to  stop  all  restraint  on  competition,  whether  this 
restraint  be  reasonable  or  unreasonable ;  and,  when  it  is  not  useless,  it  is  gen- 
erally hurtful. 

In  his  message  of  Dec.  1906  he  reiterated  the  warning. 

It  is  not  possible  completely  to  prevent  it  [consolidation];  and,  if  it  were 
possible,  such  complete  prevention  would  do  damage  to  the  body-politic. 

Though  the  Supreme  Court  has  said  that  Congress  has  established  the 
rule  of  free  competition,  and  that  it  is  not  for  the  Court  to  question  the 
industrial  expediency  of  such  legislation,  there  are  some  signs  of  a  modi- 
fication of  this  position.  The  Circuit  Court  of  Appeals  has  held  l  that 

1  Whitwdl  v.  Continental  Tobacco  Co.,  60  C.  C.  A.  Reports,  290. 


506  AMERICAN   FEDERAL   GOVERNMENT 

the  Act  must  have  a  reasonable  construction,  and  that  it  could  not  be 
the  true  meaning  of  the  law  that  every  attempt  to  monopolize  any  part 
of  interstate  commerce  was  illegal.  Somewhat  greater  strength  is  given 
to  this  position  by  the  decision  of  Mr.  Justice  Brewer  in  the  Northern 
Securities  case.  This  decision  was  rendered  by  a  bare  majority,  four 
judges,  including  the  Chief  Justice,  dissenting.  Though  Justice  Brewer 
was  of  the  majority,  he  filed  a  separate  decision,  in  which  he  said  that 

Congress  did  not  intend  to  reach  and  destroy  those  minor  contracts  in  par- 
tial restraint  of  trade  which  the  long  course  of  decisions  at  common  law  had 
affirmed  were  reasonable,  and  ought  to  be  upheld. 

This  line  of  reasoning  would  cause  the  Court  to  look  to  the  intent,  not 
to  the  mere  fact,  of  combination.  It  is  abundantly  manifest  that,  if  the 
movement  for  Trust  regulation  in  the  United  States  is  to  be  efficiently 
regulative,  not  simply  prohibitory,  it  must  recognize  that  the  beneficial 
effect  of  untrammeled  competition  —  even  if  it  were  possible  to  obtain 
it  —  is  an  outworn  sophistry ;  and  that  the  public  is  interested  not  in 
the  mere  limitation  of  competition,  whatever  be  the  cause  of  such  limita- 
tion, but  its  effect  on  national  prosperity. 

In  the  enforcement  of  the  laws  against  combinations,  the  punitive 
methods  have  been  prohibitions  and  fines.  Mr.  Bryan  asks  "how  many 
of  the  Trust  magnates  are  in  jail?"  He  contends  that  " safety  lies  not 
in  futile  attempts  at  the  restraint  of  Trusts,  but  in  legislation  which  will 
make  a  private  monopoly  impossible."  As  to  what  constitutes  a  "private 
monopoly"  he  is  extremely  vague.  "The  plan  of  attack,"  he  continues, 
"must  contemplate  the  total  and  complete  overthrow  of  the  monopoly 
principle  in  industry."  Again:  "The  man  who  is  in  favor  of  regulating 
it  [the  private  monopoly]  might  just  as  well  take  off  the  mask  and  declare 
himself;  for  you  can  not  regulate  a  private  monopoly;  it  regulates  you." 

While  President  Roosevelt  stands  for  such  regulation  as  will,  to  quote 
his  favorite  phrase,  "give  a  square  deal,"  he  is,  as  the  size  and  intricacy 
of  the  problem  grow  upon  him,  becoming  more  radical.  The  investiga- 
tions of  the  Bureau  of  Corporations  (whose  latest  reports  appeared  in 
May)  show  that  illicit  railway  favors  have  done  much  to  build  up  the 
Standard  Oil  monopoly.  The  President  holds  that  railway  control  is 
the  central  matter.  The  Government  must  possess  full  power  to  super- 
vise and  control  the  railways  engaging  in  interstate  traffic  —  power  as 
thorough  as  that  which  it  already  exercises  in  regard  to  the  banking 
system.  But  it  appears  that  he  is  at  times  doubtful  of  the  successful 
outcome  of  the  regulative  policy.  To  him  the  problem  is  becoming  two- 
fold —  the  regulation  of  the  Trusts  and  the  regulation  of  large  fortunes. 
Recently  he  has  shown  that  he  regards  these  as  a  complementary  phase 
of  the  problem.  In  his  "muck-rake"  speech,  April  13,  1906,  he  said 
that  ultimately  the  nation  would  have  to  consider  the  imposition  of  pro- 
gressive taxation  with  a  view  to  preventing  the  owners  of  enormous 


LEGISLATIVE   PROBLEMS  507 

fortunes  handing  on  more  than  a  certain  amount  to  any  one  individual. 
To  most  this  was  a  mere  statement  of  his  beliefs  in  regard  to  ultimate 
tendencies.  But  in  his  Harrisburg  speech,  on  October  4,  1906,  he  stated 
his  position  in  stronger  language. 

It  is  our  clear  duty  to  see  .  .  that  there  is  adequate  supervision  and  con- 
trol over  the  business  use  of  the  swollen  fortunes  of  to-day,  and  also  to  de- 
termine the  conditions  upon  which  those  fortunes  are  to  be  transmitted,  and 
the  percentage  they  shall  pay  to  the  Government  whose  protecting  arm  alone 
enabled  them  to  exist.  Only  the  nation  can  do  this  work.  ...  I  maintain  that 
the  national  Government  should  have  complete  power  to  deal  with  all  of  this 
wealth  which  in  any  way  goes  into  the  commerce  between  the  States —  and 
practically  all  of  it  that  is  employed  in  the  great  corporations  does  thus  go  in. 

Had  the  proposition  been  simply  one  to  obtain  increased  revenue  through 
an  inheritance  tax  it  would,  no  doubt,  have  obtained  a  generous  sup- 
port. But  the  ultra-radicalism  of  a  plan  whereby  social  policy,  not  rev- 
enue, is  to  be  the  end  in  view  is  far  in  advance  of  public  opinion.  The 
connection  between  the  large  fortunes  and  the  illicit  phases  of  the  Trust 
problem  is  assumed,  not  proven.  If  the  regulation  and  limitation  of 
private  wealth  is  to  be  undertaken,  and  if  the  Government  is,  in  its  dis- 
cretion, to  determine  when  a  fortune  is  dangerous  to  the  public  —  such 
determination  being  dependent  upon  the  size  of  the  fortune,  not  upon  its 
use  —  such  a  course  will  not  only  be  a  dangerous  invasion  of  private 
rights,  but  will  also,  of  necessity,  entail  upon  the  Federal  Government  a 
systematic  redistribution  of  wealth  —  a  task  for  which  it  is  manifestly 
unsuited. 


REPRESENTATIVE  COCKRAN  ON  CORPORATE  POWER1 

MR.  SPEAKER,  it  is  a  stupendous  issue  —  this  between  the  President 
and  the  mighty  forces  of  corruption  whose  challenge  of  battle  he  has 
accepted.  The  elements  arrayed  against  him  are  the  most  formidable 
that  ever  did  battle  in  a  struggle  for  privilege.  The  powers  they  can 
invoke  are  stronger  in  many  respects  than  the  powers  exercised  by  govern- 
ment itself.  I  wonder  if  Members  of  this  body  realize  the  extent  of  the 
powers  these  embattled  interests  can  put  in  motion. 

In  a  lecture  delivered  in  my  own  State  a  few  weeks  ago,  I  undertook 
to  say  that  our  political  system  had  undergone  a  silent  but  radical  revo- 
lution during  the  last  few  years,  that  the  greatest  powers  in  the  com- 
munity were  no  longer  exercised  in  legislative  bodies,  in  the  council 
chambers  of  cabinets,  or  in  the  offices  of  a  chief  executive,  but  in  the 
rooms  where  a  few  men  direct  the  administration  of  great  corporations 
or  plan  new  corporate  enterprises.  True,  there  has  been  no  change  in 

1  Congr.  Record,  Feb.  15,  1908. 


508  AMERICAN   FEDERAL   GOVERNMENT 

the  outward  structure  of  our  institutions,  but  the  most  profound  revolu- 
tions have  been  those  that  affect  not  the  form  but  the  substance  of  govern- 
ment. All  the  forms  of  republican  government  survived  in  Rome  long 
after  the  Republic  itself  had  been  replaced  by  absolute  despotism.  The 
atrocities  of  Caligula  and  Nero  and  Domitian,  perpetrated  under  the 
authority  of  a  republic,  show  that  forms  the  most  venerable  may  be  pre- 
served to  perpetration  of  oppressions  the  most  atrocious.  And  so,  sir, 
the  outward  structure  of  our  Government  remains  wholly  unchanged. 
Not  merely  does  our  Constitution  survive  in  form,  but  all  our  con- 
stitutional formulas  are  still  acknowledged  universally  and  invoked 
exclusively. 

Constitutionally  each  man  has  the  right  to  go  where  he  pleases,  to 
work  when  he  pleases  for  whom  he  pleases  and  for  what  he  pleases,  but 
between  him  and  the  exercise  of  these  privileges  lie  formidable  powers 
which  the  Constitution  never  contemplated  and  which  government  does 
not  control.  Practically  no  man  can  take  one  step  from  his  own  door  to 
engage  in  the  ordinary  competitions  of  life  except  on  conditions  and 
terms  fixed  by  some  corporation  operating  a  transit  system,  controlled 
by  a  few  persons  —  generally  by  one  —  with  whose  selection  govern- 
ment has  nothing  to  do,  whose  orders  and  regulations,  though  binding 
on  a  whole  community,  government  hardly  pretends  to  regulate.  What 
avails  it  a  citizen  that  legally,  constitutionally,  theoretically  he  can  sell 
his  labor  for  what  he  pleases  when  the  value  of  the  wages  he  may  earn  is 
fixed  absolutely  by  a  few  men  in  whose  selection  he  has  no  voice,  whose 
course  he  can  not  control  or  even  influence?  The  cost  of  implements 
necessary  to  his  calling,  of  the  clothes  that  cover  him,  the  food  he  eats, 
the  fuel  he  burns,  the  materials  used  in  constructing  the  house  that  shel- 
ters him,  are  all  determined  absolutely  and  even  arbitrarily  by  some  half 
a  dozen  men,  who  are  also  believed  to  control  the  chief  highways  of  com- 
merce throughout  the  country,  and, .  therefore,  the  immense  capital 
necessary  to  their  operation.  With  the  vast  banking  deposits  which  the 
control  of  production  and  transportation  places  at  their  disposal  these 
same  men  dominate  the  financial  institutions  of  every  great  city.  And 
thus  they  govern  not  merely  the  volume  of  production  and  the  means 
of  transportation  by  which  commodities  are  exchanged,  but  also,  through 
control  of  the  banks,  they  regulate  credit,  which  is  the  very  lifeblood  of 
commerce. 

Compared  with  these  enormous  powers  exercised  in  secret  by  men 
clothed  with  no  official  authority,  subject  to  no  public  supervision,  ac- 
knowledging no  responsibility,  how  trivial  are  the  powers  exercised  by 
the  nominal  or  constitutional  government,  whether  State  or  Federal,  or 
both  combined.  The  National  Government  never  comes  in  contact 
with  me  except  when  it  delivers  my  letters  or  examines  my  baggage  at 
the  dock  on  my  return  from  a  foreign  trip.  These  men  affect  closely 
every  act  of  my  life,  every  exercise  of  my  muscular  energy,  every  effort 


LEGISLATIVE   PROBLEMS  509 

that  I  make  for  the  improvement  of  my  own  condition,  every  plan  that  I 
contemplate  for  the  employment  of  my  resources  and  my  talents.  While 
I  refrain  from  crime  I  have  no  reason  to  be  conscious  that  government, 
Federal  or  State,  exists.  But  I  can  not  take  a  step  about  my  daily  affairs 
without  paying  tribute  to  these  forces,  whose  authority  is  undisputable, 
yet  whom  it  is  often  impossible  to  locate,  whose  power  is  boundless,  yet 
whose  very  identity  is  unknown.  [Applause  on  the  Democratic  side.] 

Sir,  the  powers  wielded  by  these  forces  must  be  controlled  by  law  or 
they  must  themselves  become  actually  the  government.  It  has  been  said 
that  these  powers  are  necessary  and  inevitable  products  and  features  of 
a  highly  organized  industrial  system.  The  President's  message  does  not 
discuss  the  extent  of  these  powers  nor  the  justification  of  them.  It 
merely  insists  that  whatever  they  be  they  must  remain  subordinate  and 
subject  to  the  law  of  the  land.  When  we  consider  the  influences  they 
exercise,  their  power  to  reward  the  public  man  who  serves  them  and  to 
assail  the  one  who  obstructs  their  plans  or  assails  their  privilege,  it  would 
seem  as  if  the  outcome  of  a  conflict  between  them  and  the  constitutional 
government  might  be  doubtful.  Certain  it  is  that  the  rewards  in  their 
power  to  bestow  are  preferred  by  many  men  of  great  talent  to  the  highest 
honors  of  public  life. 

Twenty  years  ago  a  seat  in  the  Senate  was  considered  the  supreme 
reward  of  political  success,  ample  compensation  for  a  lifetime  of  arduous 
labor,  fitting  crown  for  the  most  splendid  career.  Have  we  not  recently 
seen  the  toga  surrendered  by  one  of  the  most  distinguished  Senators  to 
become  the  adviser  of  financiers  ?  And  it  is  widely  suspected  that  there 
are  others  ready,  aye,  eager,  to  follow  his  example  if  opportunity  offer. 

In  New  York  —  I  speak  here  of  that  which  is  within  my  own  knowledge 
—  there  was  a  time,  and  that  not  long  ago,  when  a  seat  on  the  bench  was 
the  prize  toward  which  every  lawyer  aspired,  the  success  for  which  he 
labored,  the  fulfillment  of  his  highest  ambition.  Within  a  few  years  we 
have  seen  one  judge  after  another  quitting  that  exalted  post  to  accept 
the  retainers  of  financiers,  and  it  is  quite  generally  believed  that  those 
who  remain  on  the  bench  are  straining  their  eyes  for  an  opportunity  to 
quit  the  severe  atmosphere  of  the  courts  for  the  profitable  though  less 
honorable  service  of  corporations. 

Sir,  this  is  a  spectacle  which  may  well  cause  thoughtful  men  the  gravest 
apprehension.  The  very  life  of  the  Republic  is  involved  in  maintaining 
the  vigor  and  independence  of  the  courts.  We  have  restricted  the  powers 
of  legislature  and  no  injury  has  followed  to  the  body  politic.  We  may 
reduce  the  scope  of  Executive  authority,  and  no  serious  harm  may  ensue. 
But  there  must  be  in  every  system  of  government  some  depository  of 
ultimate  power,  some  department  that  can  fix  limits  to  the  authority 
of  all  others.  In  a  republic  that  power  must  always  remain  with  the 
courts.  It  is  a  significant  fact  that  whenever  one  of  these  judges  ex- 
changed the  judicial  ermine  that  is  honorable  for  the  livery  of  corpora- 


510  AMERICAN  FEDERAL   GOVERNMENT 

tions  that  is  profitable  he  invariably  became  a  mouthpiece  and  exponent 
of  the  apprehensions  entertained  by  his  new  employers  —  that  the 
President  is  inclined  to  carry  his  love  of  justice  too  far. 

Sir,  not  even  when  the  doubts  proceed  from  the  mouths  of  ex-judges 
transformed  into  corporation  attorneys  can  it  be  admitted  that  love  of 
justice,  however  strong,  in  any  public  servant  is  incompatible  with  the 
material  interest  of  the  people. 

Never,  at  least,  sir,  will  that  be  admitted  on  this  side  of  the  Chamber. 
Here  we  believe  that  justice  is  the  true  fountain  of  prosperity.  [Applause.] 
So  long  as  justice  governs  any  enterprise  it  can  have  no  fear  of  injury 
from  enforcement  of  the  law.  Law  can  never  be  the  foe  of  industry, 
but  always  its  companion  and  handmaiden.  Through  law  it  enjoys 
peace,  which  is  the  essential  condition  of  its  efficiency.  By  law  its  fruits 
are  defended  and  its  prosperity  promoted.  It  is  crime  which  fattens 
on  wrong,  and  its  beneficiaries  —  the  dishonest  in  commerce,  the  rotten 
in  morals,  the  corrupt  in  politics  —  that  can  have  any  reason  to  fear  the 
light  of  publicity  or  the  sword  of  justice,  and  against  these  may  that 
light  never  be  obscured,  may  that  sword  never  be  sheathed.  [Applause.] 

Sir,  if  the  rewards  bestowed  on  their  adherents,  advocates,  advisers, 
and  apologists  by  these  forces  of  intrenched  wrong  be  so  large  that  they 
are  preferred  to  places  of  highest  honor  in  the  public  service,  so  are  the 
penalties  formidable  that  they  seek  to  inflict  on  their  opponents,  critics, 
or  prosecutors.  It  would  seem  as  if  the  man  who  incurs  their  resentment 
must  be  prepared  to  renounce  hopes  of  the  most  profitable  professional 
employment  or  of  admission  to  the  charmed  circle  of  high  finance  with 
its  opportunities  for  enormous  profit.  He  must  risk  even  his  hopes  of 
public  approval.  The  storm  which  has  raged  round  the  ears  of  the 
President  ever  since  he  dared  to  take  up  the  challenge  thrown  down  by 
these  great  interests  shows  strikingly  the  extent  to  which  they  can  affect 
public  opinion  by  poisoning  the  sources  of  public  information  through 
their  ownership  of  many  leading  newspapers.  The  public  man  whom 
they  pursue  will  find  his  words  misquoted  or  suppressed,  if  distortion  be 
impossible,  his  motives  assailed,  purposes  attributed  to  him  which  are 
furthest  from  his  own  conception,  a  thousand  difficulties  created  in  his 
way  when  he  returns  to  the  constituents  whom  he  tried  to  save  from 
spoliation.  The  corrupt  need  no  incitement  to  hostility  against  the  honest. 
But  hitherto  many  of  the  well  disposed  were  cajoled  into  serving  these 
interests  by  appeals  cunningly  directed  to  their  fears  and  prejudices. 

When  we  measure  the  enormous  powers  wielded  by  these  interests 
whose  gage  of  battle  the  President  has  now  picked  up,  controlling,  as 
they  do,  every  avenue  of  success  in  the  professions,  in  politics,  and  in 
commerce,  we  must  realize  that  hitherto  opposition  to  their  unlawful 
privileges  by  a  public  man  demanded  qualities  little  short  of  heroic. 
Here,  sir,  is  the  capital  value  of  the  President's  message,  which  all  good 
men  must  applaud,  however  they  may  have  criticised  or  reflected  on  any 


LEGISLATIVE   PROBLEMS  511 

former  acts  of  the  Administration.  It  states  in  unmistakable  terms  the 
exact  nature  of  the  contest  before  the  country.  Whoever  reads  it  will 
see  that  the  issue  is  between  enforcing  the  law  against  all  men  and  sus- 
pending the  law  in  favor  of  a  few  men.  On  that  issue,  once  stated,  it  will 
be  impossible  to  divide  the  American  people.  The  demand  for  justice 
embodied  in  this  message  neither  party  will  undertake  to  ignore  or  deny 
in  its  platform  —  the  Republican  party  because  it  will  not  dare  and  this 
party  of  ours  because  it  will  not  want  to  evade  it.  [Applause  on  the 
Democratic  side.]  It  results,  sir,  that  the  campaign  now  opening  will  not 
be  a  contest  between  conflicting  principles,  but  a  choice  of  the  champion 
who  will  do  most  effective  battle  for  a  cause  which  all  will  cherish,  or 
at  least  profess  to  cherish.  While  no  one  will  openly  antagonize  the  Presi- 
dent's position,  the  prospect  of  their  being  loyally  maintained  will  turn 
entirely  on  the  character  of  the  man  chosen  to  enforce  them  during  the 
next  four  years. 

Sir,  it  is  no  ordinary  political  contest,  but  a  crusade  to  which  the  Presi- 
dent invites  us.  The  man  to  make  the  fight  successfully  must  be  animated 
by  the  spirit,  the  courage,  and  the  unselfishness  of  a  crusader.  But,  sir, 
the  qualities  of  heroism  are  not  common.  The  stuff  of  which  crusaders 
are  made  is  not  to  be  found  on  every  side.  These  qualities  were  described 
vividly  more  than  eight  hundred  years  ago,  when  Pope  Urban  II  preached 
the  first  crusade  to  the  great  gathering  at  Clermont.  You  remember,  sir, 
that  while  urging  his  hearers  to  take  up  arms  for  the  delivery  of  the  Holy 
Land  from  impious  domination  he  told  them  they  must  not  expect  prizes 
of  any  earthly  value,  but  they  must  renounce  all  hopes  of  gain  or  fortune. 
They  must  turn  their  backs  upon  the  homes  they  loved ;  in  frail  barks 
they  must  cross  seas  wide  and  stormy ;  they  must  walk  with  bleeding  feet 
over  burning  sands ;  they  must  face  with  dauntless  breasts  the  scimiter 
of  the  Saracen ;  they  must  even,  if  need  be,  with  naked  hands  climb  the 
walls  surrounding  the  city  of  the  Holy  Sepulcher  profaned  by  the  infidel's 
possession,  and  all  these  sacrifices  must  be  made,  all  these  fatigues  under- 
gone, all  these  perils  incurred  without  any  hope  of  reward  or  return, 
except  the  consciousness  of  a  high  duty  loyally  done.  And  as  that  vast 
assemblage,  moved  by  his  words,  cried  out  with  one  mighty  voice  "It  is 
God's  will!"  "It  is  God's  will!"  the  Pope  added,  "Be  those  words 
your  motto :  Id  Deus  vult  —  It  is  God's  will !  Go  forward  in  His  name ! " 

Mr.  Chairman,  that  spirit  of  readiness  to  face  all  difficulties  for  the 
sake  of  justice  because  it  is  God's  will  is  the  spirit  which  must  animate 
the  man  fit  to  lead  this  campaign.  Whoever  undertakes  the  burden  of 
this  contest  hoping  for  personal  reward  will  very  probably  be  disap- 
pointed. With  all  the  avenues  to  success  —  professional,  financial,  and 
political  —  guarded,  patrolled,  policed  by  sentries  of  the  enemy  whom 
he  must  fight,  he  must  be  ready  to  suffer,  if  need  be,  pecuniary  embarrass- 
ment, misrepresentations  of  his  motives  and  conduct,  seduction  of  his 
allies,  betrayal  by  men  he  trusts,  defeat  of  his  policies  by  treason  even  if 


512  AMERICAN  FEDERAL   GOVERNMENT 

he  be  successful  at  the  polls.  But,  sir,  though  he  be  forced  to  taste  all 
the  bitterness  of  hopeless  conflict,  his  sacrifice  will  not  be  in  vain,  his 
defeat  will  not  be  final.  Sooner  or  later  his  cause  will  triumph.  Though 
both  parties  be  complaisant,  though  legislatures  be  corrupt,  though 
courts  be  subservient,  though  judges  may  prefer  to  win  the  favor  of 
powerful  interests  than  do  justice  upon  wealthy  criminals,  none  the  less 
the  cause  of  the  people  will  prevail,  because  it  embodies  that  justice 
against  which  no  organization  of  men  has  ever  yet  been  able  to  make  a 
successful  stand.  [Applause.] 

But,  sir,  where  is  this  champion  to  be  found  who,  animated  by  the 
spirit  of  a  crusader,  will  cheerfully  face  disappointment  or  disaster 
rather  than  compromise  a  principle,  resting  his  hope  of  success  not  upon 
political  finesse,  but  on  devotion  to  an  ideal?  There  is  no  crusader  on 
the  Republican  side  except  one  [applause  on  the  Democratic  side],  and 
he  is  disqualified  from  the  fray.  His  acceptance  of  a  nomination  by 
either  party,  or  by  both  parties,  would  not  be  elevation,  but  abasement, 
almost  dishonor.  He  has  renounced  the  field  of  politics,  and  through 
that  renunciation  he  has  been  lifted  to  a  nobler  plane  by  the  spontaneous 
judgment  of  civilization.  [Applause  on  the  Democratic  side.]  Never 
before  in  the  history  of  this  country  has  a  President,  while  still  in  office, 
succeeded  in  embodying  so  completely  and  voicing  so  emphatically  the 
conscience  of  the  people  that  a  message  of  his  will  be  embodied  in  the 
platforms  of  both  political  parties.  And  this  domination  of  the  whole 
political  field  has  been  accomplished  in  the  face  of  a  rancor  fiercer  than 
ever  was  evoked  by  any  of  his  predecessors,  not  while  he  enjoys  even  a 
prospect  that  his  official  term  may  be  prolonged,  but  after  he  has  openly 
and  finally  renounced  every  chance  of  remaining  in  office.  That,  sir, 
is  a  position  no  President  has  ever  before  achieved,  at  least  not  till  long 
after  he  had  passed  from  the  scenes  of  contentious  politics  and  the  grasses 
had  been  growing  for  many  seasons  above  his  breast.  [Applause.]  The 
position  reached  by  this  man  no  party  success  could  improve,  but  any 
partisan  affiliation  must  lower.  For  him  to  become  the  nominee  of  a 
party,  whatever  the  outcome,  would  be  to  put  on  a  duller  armor,  to 
enlist  in  a  baser  cause,  to  fight  behind  a  meaner  banner.  [Applause  on 
the  Democratic  side.]  No  friend  would  tempt  him  to  such  a  descent; 
no  patriot  would  deem  him  capable  of  contemplating  it.  [Applause.] 


THE  RAILWAY  RATE  ACT   OF   1906  1 
SUMMARY  BY  GEORGE  R.  PECK 

BY  the  act  approved  June  29,  1906,  and  made  effective  sixty  days 
after  its  passage,  Congress  has  increased  the  membership  of  the  Inter- 

1  This  summary  is  taken  from  the  annual  address  of  the  President  of  the  American 
Bar  Assoc.,  1906. 


LEGISLATIVE   PROBLEMS  513 

state  Commerce  Commission  to  seven ;  increased  the  salary  of  the  office 
to  ten  thousand  dollars,  and  made  the  term  of  appointment  seven  years. 
The  law  has  been  extended  to  include  interstate  carriage  by  pipe  lines; 
the  term  " common  carrier"  to  include  " express  companies  and  sleep- 
ing car  companies";  the  term  " railroad"  to  include  "all  bridges  and 
ferries  used  or  operated  in  connection  with  any  railroad,"  all  switches, 
spurs,  tracks  and  terminal  facilities  of  every  kind,  as  also  all  freight 
depots,  yards  and  grounds  used  or  necessary  in  transportation  or  delivery 
of  property;  and  the  term  " transportation "  to  include  cars  and  other 
vehicles  and  all  instrumentalities  and  facilities  of  shipment  or  carriage, 
irrespective  of  ownership,  and  all  services  in  connection  with  the  receipt, 
delivery,  elevation  and  transfer  in  transit,  ventilation,  refrigeration  or 
icing,  storage  and  handling  of  property  so  transported.  Every  carrier 
subject  to  the  act  is  required  to  provide  and  furnish  such  transportation 
upon  reasonable  request  and  to  establish  through  routes  and  just  and 
reasonable  rates  applicable  thereto. 

All  carriers  subject  to  the  act  must  on  application  construct,  maintain 
and  operate  on  reasonable  terms  switch  connections  with  any  lateral 
branch  line  of  railroad  or  shipper  tendering  interstate  traffic  where  such 
connection  is  reasonably  practicable,  can  be  safely  made,  and  will  furnish 
sufficient  business  to  justify  it.  The  Commission  is  empowered  to  order 
such  connection  on  complaint  of  any  shipper  if  the  carrier  refuses  vol- 
untarily so  to  construct,  maintain  and  operate  the  demanded  connection. 

Tariffs  must  be  filed  with  the  Commission  and  conspicuously  posted 
"in  every  depot,  station  or  office  of  such  carrier  where  passengers  are 
received  for  transportation,  in  such  form  that  they  shall  be  accessible 
to  the  public  and  can  be  conveniently  inspected,"  showing  all  local, 
through,  interstate  and  interforeign  rates  and  charges  of  every  kind 
relating  to  the  transportation.  Where  through  lines  do  not  provide 
through  rates,  the  separate  rates  of  each  carrier  must  appear,  and  if 
through  rates  on  freight  shipped  from  the  United  States  through  a 
foreign  country  into  the  United  States  are  not  so  made,  public  customs 
duties,  "as  if  said  freight  were  of  foreign  production,"  are  imposed. 
No  changes  in  such  tariff  rates  can  be  made  except  after  thirty  days 
notice,  unless  the  Commission  shall,  in  its  discretion,  in  particular 
instances,  or  under  special  or  peculiar  circumstances  or  conditions  per- 
mit. The  names  of  all  carriers,  parties  to  any  tariff,  must  appear  thereon 
and  each  must  file  with  the  Commission  express  concurrence  therein, 
and  copies  of  all  agreements  between  carriers  in  respect  to  transportation 
covered  by  the  act  must  be  filed  with  the  Commission. 

The  Commission  is  authorized  to  prescribe  the  form  of  the  schedules 
or  tariffs  the  carriers  are  required  to  keep  posted  for  public  inspection. 
All  carriers  are  forbidden  to  engage  in  any  transportation  of  any 
freight  or  passenger  not  covered  by  such  published  schedules  or  to 
charge  "a  greater  or  less  or  different  compensation"  than  shown  by  the 

33 


5i4  AMERICAN   FEDERAL    GOVERNMENT 

published  schedules,  for  any  service,  or  extend  to  any  shipper  "any 
privileges  or  facilities"  not  specified  in  such  tariffs. 

After  May  i,  1908,  interstate  or  foreign  transportation  by  any  carrier 
is  forbidden  of  any  article  or  commodity  "other  than  timber  and  the 
manufactured  products  thereof,"  which  has  been  manufactured,  mined 
or  produced  by  it  or  under  its  authority,  or  which  it  may  own  or  be  inter- 
ested in,  whether  in  whole  or  in  part,  except  where  necessary  and  in- 
tended for  its  own  use  as  a  common  carrier. 

Passes  and  reduced  rates  are  forbidden  after  this  year,  except  to  rail-  • 
road  men  and  their  families,  ministers  and  persons  engaged  in  religious 
and  charitable  work,  inmates  of  soldiers'  and  sailors'  homes,  and  a  few 
other  classes. 

The  act  requires  that  all  charges  shall  be  "just  and  reasonable,"  and 
prohibits  all  others. 

The  Commission  may,  sua  sponte,  or  on  complaint,  investigate  any 
rate,  charge,  regulation  or  practice,  and  may  determine  whether  such 
rate  or  practice  is  "unjust  or  unreasonable,  or  unjustly  discriminatory, 
or  unduly  preferential  or  prejudicial,  or  otherwise  in  violation  of  any  of 
the  provisions  of  this  act" ;  may  prescribe  a  maximum  "just  and  reason- 
able rate  or  rates,  charge  or  charges,"  and  "what  regulation  or  practice 
in  respect  to  such  transportation  is  just,  fair  and  reasonable  to  be  there- 
after followed."  Its  orders  (except  for  the  payment  of  money)  shall 
take  effect  in  such  reasonable  time,  not  less  than  thirty  days,  and  shall 
continue  in  force  not  exceeding  two  years,  as  the  Commission  may  pre- 
scribe, unless  "suspended  or  modified  or  set  aside  by  the  Commission  or 
be  suspended  or  set  aside  by  a  court  of  competent  jurisdiction." 

Whenever  carriers,  parties  to  a  joint  tariff,  fail  to  agree  as  to  the  divi- 
sion thereof,  the  Commission  may  determine  for  them. 

The  Commission  may,  on  complaint  and  hearing,  establish  through 
routes  and  joint  rates;  determine  the  proportions  of  division  of  rates 
among  them  where  the  carriers  refuse  or  neglect  to  establish  such 
through  routes  and  joint  rates,  "provided  no  reasonable  or  satisfactory 
through  route  exists,  and  this  provision  shall  apply  when  one  of  the  con- 
necting carriers  is  a  water  line." 

Where  the  shipper  renders  any  service  or  furnishes  "any  instrumen- 
tality "  used  in  the  transportation,  the  Commission  may  hear  and  de- 
termine what  is  a  reasonable  maximum  charge  to  be  paid  by  the  carrier 
therefor. 

The  Commission  may,  on  complaint,  after  hearing,  order  the  defend- 
ant carrier  to  pay  complainant  the  sum  of  any  "award  of  damages" 
for  a  violation  of  the  act.  Refusal  to  pay  may  be  followed  by  suit  by  the 
party  entitled,  in  a  Federal  Court,  wherein  the  findings  and  order  of 
the  Commission  "shall  be  prima  facie  evidence  of  the  facts  therein 
stated."  If  the  petitioner  prevails,  costs,  including  "a  reasonable  attor- 
ney's fee,"  shall  be  taxed  against  the  carrier.  The  complaint  must  be 


LEGISLATIVE   PROBLEMS  515 

filed  with  the  Commission  within  two  years  from  the  time  "the  cause 
accrues,"  and  court  proceedings  to  enforce  any  order  of  the  Commission 
awarding  damages  within  one  year  from  the  date  of  the  order.  Claims 
accrued  prior  to  the  act  may  be  presented  within  one  year.  Where 
money  damages  are  awarded,  a  single  order  may  embrace  joint  plain- 
tiffs and  joint  defendants,  and  suit  may  be  brought  in  any  federal  judicial 
district  for  its  enforcement,  "  where  any  one  of  such  joint  plaintiffs  could 
maintain  such  suit  against  any  one  of  such  joint  defendants." 

Process  may  also  be  served  in  any  other  district  where  any  other  joint 
defendant  has  its  principal  operating  office. 

Service  of  the  Commission's  orders  are  to  be  made  by  sending  copy 
thereof  through  registered  mail  "to  any  one  of  the  principal  offices  or 
agents  of  the  carrier  at  his  usual  place  of  business,"  and  the  registry 
mail  receipt  shall  be  prima  facie  evidence  of  the  "receipt  of  such  order 
by  the  carrier  in  due  course  of  mail." 

On  failure  or  neglect  of  any  carrier  to  obey  any  order  of  the  Commis- 
sion (other  than  for  the  payment  of  money)  the  injured  party  or  the 
Commission  may  apply  "to  the  Circuit  Court  in  the  District  where  such 
carrier  has  its  principal  operating  office  or  in  which  the  violation  or  dis- 
obedience of  such  order  shall  happen  for  an  enforcement  of  such  order." 
Such  application  is  to  be  by  petition  and  the  Court  may  enforce  the 
order  by  any  proper  process.  Appeals  go  direct  to  the  Supreme  Court 
and  have  precedence  over  all  cases  except  criminal  ones,  but  do  not 
vacate  or  suspend  the  order.  These  suits  are  to  be  brought  in  the  District 
where  the  carrier  has  his  principal  office. 

In  time  of  actual  or  threatened  war  and  upon  demand  of  the  President, 
preference  must  be  given  over  all  other  traffic  to  the  transportation  of 
troops  and  materials  of  war,  and  the  carriers  are  required  to  adopt  every 
means  within  their  control  to  facilitate  and  expedite  the  military 
traffic. 

The  act  provides  that  anything  done  or  omitted  by  any  officer  or 
agent  of  the  carrier  constituting  a  misdemeanor  under  the  interstate 
Commerce  acts  shall  also  subject  the  carrier  corporation  to  like  penalties, 
and  if  any  official  shall  knowingly  offer  and  give,  or  any  shipper  ask  or 
receive  any  rebate  or  discrimination,  they  shall  severally  be  fined  from 
one  thousand  dollars  to  twenty  thousand  dollars  or  imprisoned  not  ex- 
ceeding two  years,  or  be  both  fined  and  imprisoned. 

The  Commission  may  require  and  the  carriers  must  furnish  under 
prescribed  penalties  annual  reports  for  the  preceding  year  ending 
June  3oth,  as  well  as  monthly  reports  of  earnings  and  expenses,  "or 
special  reports  within  a  specified  period  and  subject  to  like  penalty  for 
default."  The  annual  reports  are  to  be  in  great  detail  and  show  nearly 
everything  concerning  the  financial  condition  and  physical  operation  of 
the  road. 

The  Commission  may  also  prescribe  forms  "of  any  and  all  accounts, 


516  AMERICAN   FEDERAL   GOVERNMENT 

records  and  memoranda  to  be  kept  by  carriers  subject  to  the  provisions 
of  this  act,  including  the  accounts,  records  and  memoranda  of  the 
movement  of  traffic  as  well  as  the  receipts  and  expenditures  of  moneys," 
to  which  the  Commission  shall  at  all  times  have  access  by  its  agents, 
and  it  is  made  unlawful  under  drastic  penalties  for  the  carriers  to  deny 
such  access  thereto  or  "to  keep  any  other  accounts,  records,  or  memo- 
randa than  those  prescribed  or  approved  by  the  Commission."  False 
entries  thereon  by  any  person  is  made  a  misdemeanor  punishable  by 
fine  not  less  than  one  thousand  dollars  or  more  than  five  thousand 
dollars,  or  by  imprisonment  for  not  less  than  one  nor  more  than  five 
years,  or  by  both  fine  and  imprisonment. 

Any  examiner  who  divulges  any  information,  except  upon  judicial 
direction,  is  made  subject  to  a  fine  not  exceeding  five  thousand  dollars 
or  imprisonment  not  exceeding  two  years,  or  both. 

On  interstate  shipments  carriers  may  no  longer  limit  their  liability  to 
their  own  line,  but  are  responsible  for  loss  or  damage  on  the. lines  of 
connecting  carriers. 

All  existing  laws  relating  to  attendance  of  witnesses,  production  of 
evidence,  and  compelling  testimony  are  made  applicable  to  all  proceed- 
ings and  hearings  under  the  new  act. 

By  a  separate  act  approved  on  the  same  date  (June  30,  1906),  it  is 
provided  that  in  respect  to  proceedings  under  the  interstate  commerce 
and  related  acts  "immunity  shall  extend  only  to  a  natural  person  who, 
in  obedience  to  a  subpoena,  gives  testimony  under  oath  or  produces  evi- 
dence, documentary  or  otherwise,  under  oath." 

By  an  act  approved  June  20,  1906,  the  time  for  continuous  inter- 
state transportation  of  cattle,  sheep,  swine  or  other  animals  has  been 
extended  from  twenty-eight  to  thirty-six  hours  where  the  owner  or 
custodian  so  requests  the  carrier  in  writing,  and  requiring  unloading, 
water  and  feeding  under  prescribed  penalties. 

By  an  act  approved  June  n,  1906,  all  interstate  carriers  are  made 
liable  to  all  employees  for  injury  or  death  caused  by  negligence  of  any 
of  the  employees  or  the  defect  or  insufficiency  due  to  negligence  in 
track  equipment,  machinery  or  works.  Negligence  is  made  a  question 
of  fact  for  the  jury,  and  slight  negligence  of  the  injured  employee  shall 
not  bar  recovery  when  the  negligence  of  the  employer  was  gross  in 
comparison.  No  contract  of  employment  nor  benefit  agreements  shall 
constitute  a  bar  or  defense  to  actions  for  death  or  personal  injury.1 

By  an  act  approved  June  12,  1906,  the  importation,  exportation  or 
carriage  in  interstate  commerce  of  falsely  or  spuriously  stamped  articles 
of  merchandise  made  of  gold  or  silver  or  their  alloys  is  forbidden,  and  all 
persons  found  guilty  of  violating  the  act  are  to  be  punished  as  therein 
prescribed.  The  act  is  made  effective  one  year  after  its  passage. 

1  [This  act  was  held  unconstitutional  by  the  Supreme  Court  in  1907.  A  new  act  was 
passed  in  1908.  See  infra,  p.  527.] 


LEGISLATIVE   PROBLEMS  517 

EXTRACTS   FROM   THE   REPORT   OF   THE   INTERSTATE 
COMMERCE   COMMISSION,   DECEMBER   23,  1907 

To  THE  SENATE  AND  HOUSE  OF  REPRESENTATIVES: 

The  Interstate  Commerce  Commission  has  the  honor  to  submit  its 
twenty-first  annual  report  for  the  consideration  of  the  Congress. 

Little  more  is  attempted  in  this  report  than  a  general  statement  of 
the  wprk  performed  by  the  Commission  during  the  past  year  in  the 
discharge  of  its  official  duties.  A  considerable  part  of  the  time  has 
been  occupied  in  giving  administrative  construction  to  various  provi- 
sions of  the  law  for  the  guidance  of  both  shippers  and  carriers.  To 
secure  the  best  results  of  legislation  with  the  least  possible  delay  there 
was  obvious  need  of  a  correct  and  uniform  interpretation  of  the  statute. 
Therefore,  without  reference  to  questions  arising  in  particular  cases, 
and  to  avoid  unnecessary  controversy,  it  has  seemed  our  duty  to  con- 
strue the  law  in  advance  wherever  it  appeared  obscure  or  ambiguous, 
so  that  the  obligations  of  the  railroads  and  the  rights  of  the  public 
might  be  promptly  understood.  This  has  resulted  in  numerous  rulings 
explaining  our  view  of  the  meaning  and  application  of  different  sections 
and  paragraphs  of  the  statute.  These  rulings  have  in  practically  every 
instance  been  accepted  by  the  carriers,  even  in  cases  where  their  legal 
advisers  were  not  entirely  in  accord  with  the  opinion  of  the  Commission. 
The  rulings  and  regulations  already  promulgated  will  be  revised  and 
printed  in  a  separate  document. 

The  benefits  of  this  course  are  beyond  question.  The  Commission 
has  endeavored  to  adopt  a  workable  construction  of  the  law  in  all  cases, 
and  has  as  a  rule  announced  its  conclusions  in  matters  of  importance 
only  after  conference  and  discussion  with  representative  shippers  and 
traffic  officials.  This  is  especially  true  with  reference  to  tariff  regula- 
tions, a  subject  which  is  treated  at  some  length  in  a  subsequent  part  of 
this  report.  This  matter  is  fundamental  in  any  scheme  of  public  regu- 
lation. There  is  scarcely  a  complaint  or  controversy  which  is  not  based 
upon  the  schedules  of  rates  and  charges  established  by  the  carriers.  If 
those  schedules  are  clear  and  definite  in  their  statements,  there  is  no 
excuse  for  disregarding  them.  If  the  rates  and  regulations  are  reason- 
able and  plainly  announced,  the  shipper  knows  his  rights  and  the  rail- 
way official  knows  the  obligations  of  his  company.  If  the  charges  are 
claimed  to  be  excessive  or  discriminatory,  the  question  can  be  intelligently 
determined  after  the  full  hearing  which  the  statute  provides.  It  is  believed 
that  the  efforts  of  the  Commission  in  this  direction  have  already  been 
fruitful  of  good  results  and  that  they  will  prove  of  increasing  value,  in 
the  future. 

The  amended  law  has  now  been  in  force  for  upwards  of  fifteen  months, 
and  some  opinion  may  be  expressed  as  to  its  operation  and  effects.  The 


5i8  AMERICAN   FEDERAL   GOVERNMENT 

substantive  provisions  of  the  original  act,  forbidding  the  exaction  of 
unreasonable  charges  and  prohibiting  discriminations  between  persons 
and  places,  were  unchanged  by  the  legislation  of  1906.  The  main  pur- 
pose of  that  legislation  was  to  provide  more  adequate  means  for  the 
enforcement  of  rights  and  duties  already  declared  to  exist.  The  vital 
principle  of  a  right  is  found  in  the  obligation  to  respect  it.  Without 
remedial  procedure  the  declaratory  portion  of  any  law  is  little  more  than 
the  statutory  expression  of  a  sentiment,  but  when  efficient  machinery 
for  securing  observance  is  provided  the  performance  of  definite  .duties 
and  the  recognition  of  definite  rights  may  be  expected  to  follow  in  ordi- 
nary conduct  without  resort  to  litigation.  That  this  is  true  in  regard 
to  the  amended  act,  and  to  an  extent  not  generally  appreciated,  is  con- 
fidently asserted.  Just  as  the  value  of  criminal  laws  is  measured  by  the 
peace  and  security  of  society  rather  than  the  occasional  conviction  of 
offenders,  so  the  salutary  effects  of  the  present  statute  are  shown  in  the 
more  general  enjoyment  of  previously  existing  rights  rather  than  by 
the  number  of  cases  in  which  the  authority  of  the  Commission  has  been 
invoked  or  the  list  of  decisions  and  prosecutions  which  makes  up  the 
record  of  administration. 

It  is  likewise  true  that  the  substantial  and  permanent  benefits  of  this 
law  are  indirect  and  frequently  unperceived  even  by  those  who  in  fact 
profit  by  its  observance.  It  means  much  for  the  present  and  more  for 
the  future  that  the  principles  of  this  law  have  gained  greatly  in  gen- 
eral understanding  and  acceptance.  The  injustice  of  many  practices 
which  were  once  almost  characteristic  of  railway  operations  is  now 
clearly  apprehended,  and  an  insistent  public  sentiment  supports  every 
effort  for  their  suppression.  By  railway  managers  almost  without  ex- 
ception the  amended  law  has  been  accepted  in  good  faith,  and  they 
exhibit  for  the  most  part  a  sincere  and  earnest  disposition  to  conform 
their  methods  to  its  requirements.  It  was  not  to  be  expected  that 
needed  reforms  could  be  brought  about  without  more  or  less  difficulty 
and  delay,  but  it  is  unquestionably  the  fact  that  great  progress  has  been 
made  and  that  further  improvement  is  clearly  assured.  To  a  gratifying 
extent  there  has  been  readjustment  of  rates  and  correction  of  abuses 
by  the  carriers  themselves.  Methods  and  usages  of  one  sort  and  another 
which  operated  to  individual  advantage  have  been  voluntarily  changed, 
and  it  is  not  too  much  to  say  that  there  is  now  a  freedom  from  forbidden 
discriminations  which  is  actual  and  general  to  a  degree  never  before 
approached.  As  this  process  goes  on,  as  special  privileges  disappear 
and  favoritism  ceases  to  be  even  suspected,  the  indirect  but  not  less 
certain  benefits  of  the  law  will  become  more  and  more  apparent. 

An  incidental  respect  in  which  equality  of  treatment  has  been  greatly 
promoted  is  in  such  matters  as  switching,  terminal,  demurrage,  recon- 
signment,  elevation,  and  other  charges  making  up  the  aggregate  cost  of 
transportation.  In  the  past  it  was  often  within  the  power  of  a  carrier 


LEGISLATIVE   PROBLEMS 


519 


to  waive  charges  of  this  nature  in  favor  of  particular  shippers  while 
collecting  them  from  business  rivals.  Now  the  law  and  the  rules  of  the 
Commission  require  all  charges  of  this  description  to  be  plainly  stated 
in  the  tariffs  and  to  be  applied  with  the  same  exactness  and  uniformity 
as  the  transportation  rate  itself.  This  is  only  one  of  the  ways  in  which 
distinct  advance  has  been  made  toward  placing  competing  shippers  in 
each  locality  upon  a  basis  of  equality  in  the  enjoyment  of  a  public 
service. 

It  is  this  general  and  marked  improvement  in  transportation  con- 
ditions that  the  Commission  observes  with  special  gratification.  The 
amended  law  with  its  enforceable  remedies,  the  wider  recognition  of  its 
fundamental  justice,  the  quickened  sense  of  public  obligation  on  the 
part  of  railway  managers,  the  clearer  perception  by  shippers  of  all 
classes  that  any  individual  advantage  is  morally  as  well  as  legally  in- 
defensible, and  the  augmented  influence  of  the  Commission  resulting 
from  its  increased  authority  have  all  combined  to  materially  diminish 
offensive  practices  of  every  sort  and  to  signally  promote  the  purposes 
for  which  the  law  was  enacted. 

This  results  in  the  voluntary  adjustment  by  the  parties  without  resort 
to  the  Commission  of  a  vast  number  of  controversies  which  otherwise 
would  ripen  into  complaint  and  litigation,  while  in  numerous  instances 
a  settlement  is  effected  by  the  friendly  intervention  of  the  Commission, 
through  correspondence  or  personal  interviews,  between  the  shipper  and 
carrier  directly  concerned.  The  nature  and  extent  of  the  Commission's 
efforts  in  this  direction  are  summarized  in  another  part  of  this  report. 

Where  formal  proceedings  were  necessary  the  Commission  has  gen- 
erally been  able  to  afford  prompt  relief  when  the  facts  disclosed  appeared 
to  warrant  a  corrective  order.  Between  August  28,  1906,  and  Nov- 
ember 4,  1907,  the  Commission  rendered  decisions,  after  full  hearing 
upon  complaint  and  answer,  in  107  contested  cases,  a  list  of  which 
appears  in  a  subsequent  chapter  of  this  report.  In  46  of  these  cases 
orders  were  made  against  the  defendant  carriers;  in  46  the  complaints 
were  dismissed;  in  the  remaining  15  no  orders  were  made,  for  reasons 
stated  in  each  proceeding.  With  a  single  exception  every  order  made 
by  the  Commission  in  these  cases  was  promptly  complied  with  by  the 
carrier  or  carriers  against  which  it  was  directed.  In  one  case  a  bill  was 
filed  to  restrain  the  enforcement  of  an  order,  mainly  on  the  ground  that 
the  Commission  had  no  authority  to  make  it,  and  a  preliminary  stay 
granted.  But  the  motion  for  an  injunction  pendente  lite  was  denied, 
with  the  result  that  the  order  became  effective  and  is  now  being  com- 
plied with  by  the  carrier  in  question.  The  case  has  not  yet  been  tried 
in  the  Circuit  Court. 

Two  subjects  are  discussed  in  subsequent  chapters  of  this  report  to 
which,  and  the  recommendations  made  in  connection  therewith,  special 
attention  is  invited.  One  is  the  matter  of  advances  in  rates,  which  the 


520  AMERICAN   FEDERAL   GOVERNMENT 

Commission  is  wholly  without  power  to  prevent;  the  other,  the  dread- 
ful destruction  of  life  in  railway  accidents,  which  are  not  now  the 
subject  of  official  investigation  under  Federal  authority.  Other  recom- 
mendations are  made  in  connection  with  various  matters  which  are 
deemed  of  sufficient  importance  to  require  consideration  in  this  report. 

In  our  last  annual  report  mention  was  made  of  the  car  shortage  pre- 
vailing at  that  time  and  the  consequent  distress  in  certain  parts  of  the 
country.  The  inability  of  the  Commission  to  afford  any  effective  relief 
was  pointed  out,  and  it  was  further  stated  that  the  Commission  was 
not  prepared  to  recommend  a  definite  scheme  of  legislative  action. 
While  the  car  shortage  is  not  at  present  so  acute  as  a  year  ago,  it  still 
exists  in  some  sections,  and  the  general  question  of  the  provision  of 
adequate  transportation  facilities  unquestionably  merits  serious  con- 
sideration by  the  Congress.  The  whole  problem,  involving  insuffi- 
cient car  and  track  capacity,  congested  terminals,  slow  train  movement, 
and  other  incidents,  may  be  said  to  be  due  to  the  fact  that  the  facilities 
of  the  carriers  have  not  kept  pace  with  the  commercial  growth  of  the 
country.  One  eminent  railroad  president  has  estimated  that  during 
the  period  from  1895  to  1905  the  traffic  offered  for  carriage  in  the 
United  States  increased  no  per  cent,  while  during  the  same  period  the 
instrumentalities  for  handling  this  traffic  increased  only  20  per  cent. 

During  the  past  decade  the  commercial  condition  of  the  country  has 
been  one  of  increasing  prosperity.  If  business  undertakings  propor- 
tionately increase  during  future  years,  the  railroads  of  the  country  must 
add  to  their  tracks,  cars,  and  other  facilities  to  an  extent  difficult  to 
estimate.  The  ability  of  the  carriers  to  transport  traffic  measures  the 
profitable  production  of  this  vast  country,  with  its  ninety  millions  of 
people,  abundant  capital,  and  practically  unlimited  resources.  Mani- 
festly, it  is  an  economic  waste  for  the  farm,  the  mine,  or  the  factory  to 
put  labor  and  capital  into  the  production  of  commodities  which  can  not 
be  transported  to  market  with  reasonable  despatch.  If  the  present  out- 
put can  not  in  many  instances  be  transported  except  after  ruinous 
delays,  it  is  not  reasonable  to  presume  that  capital  will  readily  seek 
investment  in  new  undertakings.  It  may  conservatively  be  stated  that 
the  inadequacy  of  transportation  facilities  is  little  less  than  alarming; 
that  its  continuation  may  place  an  arbitrary  limit  upon  the  future  pro- 
ductivity of  the  land,  and  that  the  solution  of  the  difficult  financial  and 
physical  problems  involved  is  worthy  the  most  earnest  thought  and 
effort  of  all  who  believe  in  the  full  development  of  our  country  and  the 
largest  opportunity  for  its  people. 

Under  the  operation  of  the  Interstate  Commerce  Act  the  right  to 
initiate  interstate  rates  rests  entirely  with  the  railway,  which  may, 
by  giving  thirty  days'  notice,  put  into  effect  any  rate  or  any  regulation 
or  practice  affecting  a  rate  which  it  sees  fit.  The  Commission  is  not 
required  to  approve  these  rates  and  has  no  authority  whatever  to  con- 


LEGISLATIVE  PROBLEMS  521 

demn  them.  It  can  only  act  upon  a  rate  so  established  by  the  railway 
in  case  a  formal  complaint  is  filed  attacking  that  rate  and  after  a  full 
hearing.  This  is  the  express  provision  of  the  statute. 


RATE  SCHEDULES  AND  APPLICATION  OF  RATES 

Definiteness,  clearness,  and  simplicity  in  stating  transportation 
charges,  uniformity  in  applying  the  rates  so  stated,  and  stable  condi- 
tions are  ends  aimed  at  in  the  law  and  sought  by  the  Commission  in 
administering  it. 

Prior  to  the  enactment  of  the  amended  law  the  time  of  notice  of 
changes  in  rates  required  by  the  act  was  too  short  to  give  stability  to 
conditions  of  transportation,  even  if  the  terms  of  the  law  had  been 
carefully  observed.  Tariffs  were  issued  upon  statutory  notice  and  upon 
no  notice  at  all.  Opportunities  to  get  business  were  met  by  issuing  a 
tariff  "expiring  with  this  shipment;  "  by  quotation  of  rates  found  in 
some  other  carrier's  tariffs  and  applicable  via  another  route ;  by  quota- 
tion of  rates  not  found  in  any  tariff ;  by  forwarding  under  regular  tariff 
rates  and  refunding  an  agreed-upon  portion  thereof  and  by  forwarding 
under  regular  tariff  rates  and  agreeing  to  "protect  "  any  rate  of  any 
competing  carrier.  Some  carriers  openly  published  declarations  of 
which  the  following  is  a  sample: 

"Tariffs  published  by  connecting  lines  to  competitive  points  on  this  road, 
or  to  points  beyond,  which  do  not  read  in  connection  with  this  road,  will  be 
protected  by  this  road,  if  the  rates  in  such  tariff  are  less  than  those  published 
by  originating  line  in  connection  with  this  road." 

As  a  necessary  outcome  of  such  practices  the  official  files  of  tariffs 
were  very  voluminous  and  contained  an  endless  number  of  contradic- 
tions and  conflicts.  To  bring  order  out  of  this  condition  and  at  the 
same  time  have  all  the  carriers  conducting  transportation  to  the  utmost 
extent  of  their  overtaxed  facilities  was  an  important,  a  delicate,  and  a 
large  undertaking. 

This  work  was  approached  by  the  formation,  after  exhaustive  con- 
ferences with  traffic  officials  of  carriers,  of  a  code  of  regulations  gov- 
erning the  construction  of  tariffs,  which  was  promulgated  to  become 
effective  May  i,  1907,  and  June  i,  1907,  as  to  freight  and  passenger 
tariffs,  respectively. 

This  code  has  been  supplemented  from  time  to  time,  as  occasion 
demanded,  by  administrative  rulings  of  the  Commission,  by  which 
many  misunderstandings  and  differences  of  opinion  have  been  har- 
monized. It  is  pleasing  to  note  that  such  rulings  have,  very  generally, 
been  cheerfully  accepted  by  carriers  and  shippers. 


522  AMERICAN  FEDERAL   GOVERNMENT 

As  an  aid  to  elimination  of  the  objectionable,  contradictory,  and 
conflicting  features  which  were  contained  in  the  tariffs  that  were  on 
file  and  in  use  when  the  amended  act  became  effective,  and  for  the 
purpose  of  permitting  carriers  to  promptly  adjust  interstate  rates  in 
harmony  with  interstate  rates  that  were  changed  by  State  authorities, 
the  Commission  has  exercised  its  discretion  to  permit  changes  in  rates 
and  schedules  on  less  than  statutory  notice  more  freely  than  it  would 
under  different  conditions. 

Many  of  the  features  that  have  been  eliminated  affected  the  interests 
of  so  many  shippers  and  localities  that  considerable  time  was  necessarily 
consumed  in  arranging  for  and  providing  superseding  rates  and  regula- 
tions which  would  not  work  severe  or  irreparable  injury  to  innocent 
parties.  Much  has  been  done  along  this  line,  much  is  now  being  done, 
and  much  remains  to  be  done.  The  task  is  by  no  means  hopeless  and, 
now  that  a  good  foundation  is  laid  for  it,  more  progress  will  be  apparent 
on  the  surface  in  the  future.  In  this  work  the  Commission  has  insisted 
upon  all  of  the  progress  that  was  possible  within  the  limits  of  the  ability 
of  the  carriers'  tariff  and  rate  forces  and  the  capacity  of -the  available 
printing  facilities.  In  the  twelve  months  ended  November  30,  1907, 
there  were  filed  with  the  Commission  220,982  tariff  publications,  all 
containing  changes  in  rates  and  rules  governing  transportation,  and 
about  400,000  notices  of  concurrence  in  tariffs. 

Under  former  practices,  adopted  and  followed  by  the  carriers,  no 
provision  was  made  for  definite  concurrence  by  a  carrier  in  tariffs  issued 
by  another  carrier.  The  general,  if  not  universal,  understanding  was 
that  a  carrier  accepted  any  rates  published  by  another  carrier  if  it  did 
not  file  specific  notice  of  nonconcurrence  therein.  This  liability  was  not, 
however,  always  accepted,  and  numerous  complications  and  controver- 
sies arose  from  a  carrier  denying  responsibility  under  a  tariff  on  the 
ground  that  it  had  not  specifically  concurred  therein.  The  tariff  regula- 
tions adopted  by  the  Commission  require  affirmative,  definite  concurrence 
from  a  carrier  before  it  may  be  named  as  a  party  to  a  joint  tariff. 

Much  traffic  is  moved  under  joint  tariffs,  participated  in  by  many 
carriers,  and  issued  by  joint  agent,  who  acts  under  powers  of  attorney 
given  by  his  several  principals.  This  plan  commends  itself  strongly. 
It  operates  to  reduce  the  number  of  tariff  publications  and  assists  greatly 
in  avoiding  conflict  between  tariffs  of  a  given  carrier  in  two  or  more  of 
which  conflicting  rates  upon  the  same  commodity,  between  the  same 
points  and  at  the  same  time  are,  under  old  practices,  not  infrequently 
found. 

The  unrestrained  and  run-mad  competition  which  has  been  resorted 
to  in  the  past  has  resulted  in  the  establishment  of  some  conditions,  privi- 
leges, contracts,  and  allowances  in  connection  with  the  furnishing  of 
transportation  by  carriers,  which  created,  or  which  contain  the  elements 
of,  the  discriminations  which  the  law  condemns.  Many  of  these  are 


LEGISLATIVE   PROBLEMS  523 

of  long  standing,  are  far-reaching  in  their  effects,  and  involve  some  fine 
questions  of  law.  The  requirement  that  every  privilege  or  charge  in 
connection  with  the  transportation  offered  by  a  carrier  shall  be  plainly 
stated  in  a  duly  published,  filed,  and  posted  tariff  will,  no  doubt,  elimi- 
nate the  discriminatory  practices,  except  such  as  may  be  the  subject  of 
litigation  before  this  Commission  or  in  the  courts. 


DIVISION  OF  PROSECUTIONS 

Early  in  the  present  year  the  Commission  organized  a  new  division 
known  as  the  " division  of  prosecutions,"  to  take  full  charge  of  investiga- 
tions into  criminal  violations  of  the  act  to  regulate  commerce.  On 
receipt  of  information  of  any  violation  of  the  act  amounting  to  a  criminal 
infraction  of  the  law,  it  becomes  the  duty  of  this  division  to  make  such 
investigations  as  may  be  necessary  to  determine  whether  or  not  the 
matter  is  one  proper  to  be  brought  to  the  attention  of  the  Department 
of  Justice.  In  any  case  where  it  is  finally  determined  by  the  Commission 
that  a  criminal  prosecution  is  proper,  it  is  the  duty  of  the  division  to  pre- 
pare the  case  for  presentation  to  the  United  States  attorney  in  the  district 
having  jurisdiction. 

In  connection  with  this  work  of  enforcement  of  the  law  by  means  of 
criminal  prosecutions,  the  Department  of  Justice  and  its  various  dis- 
trict attorneys  have,  throughout  the  year,  been  active  and  effective. 
Almost  without  exception  those  prosecutions  brought  to  trial  have  re- 
sulted in  convictions ;  also  a  number  of  highly  important  cases  have  been 
won  in  the  appellate  courts. 

Investigations  during  the  year  by  the  division  of  prosecutions  give 
warrant  for  the  statement  that  rebating  by  the  direct  payment  of  money 
or  by  billing  at  less  than  the  published  rates  is  now  far  less  common 
than  ever  before.  The  amendments  to  the  act  to  regulate  commerce 
and  to  the  Elkins  Act,  made  in  June,  1906,  by  which  imprisonment  as 
a  possible  penalty  was  restored,  are  chiefly  responsible  for  this  cessation 
in  rebating  by  direct  methods. 

Preferences  are  undoubtedly  enjoyed  by  some  shippers  by  which  they 
are  given  a  substantial  advantage  over  their  unfavored  competitors. 
The  means  by  which  the  bulk  of  these  preferences  are  given  are  so 
plainly  devices  to  evade  the  law  that  no  new  legislation  is  necessary  for 
their  suppression. 


OPERATING  DIVISION  or  THE  COMMISSION 

Since  the  twentieth  annual  report  of  the  Commission  was  submitted 
to  Congress,  5,156  complaints  have  been  filed  with  the  Commission  for 


524  AMERICAN   FEDERAL   GOVERNMENT 

consideration  and  action.  These  cases  include  both  formal  and  informal 
complaints,  as  well  as  proceedings  and  investigations  instituted  by  the 
Commission  upon  its  own  motion  and  under  resolutions  of  the  Congress. 
The  number  of  formal  cases  and  investigations  instituted  during  the 
year  was  415,  relating  directly  to  the  rates  and  practices  of  2,236  carriers. 
This  shows  a  very  great  increase  over  previous  years,  as  the  number  of 
such  complaints  filed  in  1905  was  65  and  82  in  the  year  1906,  while  the 
total  number  filed  during  the  six  years  previous  to  1907  was  350,  or  65 
less  than  in  the  present  year.  A  detailed  statement  of  the  formal  com- 
plaints docketed  during  the  year,  with  a  brief  statement  of  the  provisions 
of  the  law  claimed  to  be  violated,  will  be  found  in  Appendix  C  of  this 
report.  In  addition  to  these  formal  complaints,  359  petitions  for  repara- 
tion have  been  filed  and  served  on  more  than  2,500  carriers  as  a  result 
of  the  decisions  of  the  Commission  in  the  cases  of  H.  H.  Tift  and  others 
against  the  Southern  Railway  Company  and  others,  and  Central  Yellow 
Pine  Association  against  the  Illinois  Central  Railroad  Company  and 
others,  which  decisions  were  sustained  by  the  Supreme  Court  of  the 
United  States.  Accompanying  these  petitions  were  thousands  of  pages 
of  tabulated  statements  showing  the  shipments  of  lumber  upon  which 
reparation  is  claimed,  adding  materially  to  the  work  necessary  to  the 
filing  and  serving  of  these  petitions. 

The  work  of  the  Commission  in  all  its  branches  has  increased  to  such 
an  extent  that  it  seems  almost  impossible  to  prepare  a  statement  that 
will  show  the  relative  yearly  increase  with  any  degree  of  accuracy.  Take, 
for  example,  the  increase  in  the  number  of  complaints  filed,  which,  of 
course,  means  a  corresponding  increase  in  the  amount  of  work  performed 
in  the  Operating  Division  alone.  In  the  year  1905,  when  only  65  com- 
plaints were  filed,  it  required  in  the  .service  of  the  complaints  and  the 
assignment  of  the  cases  for  hearing  the  preparation  of  2,500  letters  and 
notices,  while  during  the  present  year  this  branch  of  the  work,  not  count- 
ing general  correspondence  in  regard  to  the  cases,  amounted  to  more 
than  15,000  letters  and  notices.  In  addition  to  this  something  like 
2,500  answers  and  other  pleadings  were  filed,  each  one  of  which  had  to 
be  filed,  docketed,  and  acknowledged. 

As  shown  in  a  detailed  statement  further  on  in  this  report,  276  hear- 
ings were  held  during  the  year  at  various  places  in  the  United  States, 
at  which  more  than  35,000  pages  of  testimony  were  taken,  amounting 
to  something  like  88,000  folios.  A  comparison  with  the  hearings  of 
former  years  shows  an  increase  of  350  per  cent,  as  79  hearings  were 
held  in  1905  and  73  in  1906.  Some  of  these  hearings  occupied  the  at- 
tention of  one  or  more  Commissioners  or  special  examiners  from  one 
day  to  a  week.  In  one  instance  eighteen  days  were  occupied  in  the 
hearing  of  one  complaint,  while  a  number  required  more  than  a  week 
each. 

In  the  matter  of  informal  complaints  filed  during  the  present  year  an 


LEGISLATIVE   PROBLEMS  525 

even  greater  increase  is  found.  During  the  present  year  4,382  complaints 
of  this  character  were  filed  with  the  Commission,  as  against  503  in  the 
year  1905,  and  1,002  in  the  year  1906,  showing  an  increase  of  more  than 
400  per  cent  over  the  preceding  year.  It  is  found  impracticable  to  give 
a  more  detailed  statement  of  these  informal  proceedings  "in  this  report, 
but  it  may  safely  be  stated  that  they  allege  violations  of  every  section 
of  the  law. 

During  the  year  informal  reparation  claims  were  awarded  to  injured 
shippers  by  the  Commission  in  561  cases,  aggregating  about  $104,700. 
A  synopsis  of  these  cases  appears  in  Appendix  F  of  this  report,  which 
shows  the  causes  for  which  the  money  damages  were  allowed.  About 
200  reparation  claims  were  denied.  So  important  has  this  branch  of 
the  work  become  that  it  has  recently  been  made  a  special  division  and 
transferred  to  the  Division  of  Statistics  and  Accounts. 

In  the  matter  of  the  correspondence  of  the  Commission  this  steady 
yearly  increase  is  still  further  manifested.  During  the  year  1905  the 
Commission  received  23,720  letters  and  in  1906,  29,966  letters,  while 
during  the  present  year  66,933  letters  were  received,  briefed,  filed,  and 
answered,  averaging  more  than  218  letters  for  each  working  day  in  the 
year.  This  statement  relates  entirely  to  the  operating  branch  of  the 
Commission. 

The  increased  power  vested  in  the  Commission  by  the  recent  amend- 
ments to  the  act  has  naturally  led  to  the  multiplication  of  the  number 
of  complaints  presented  by  letter,  and  these  complaints  relate  to  every 
conceivable  subject  connected  with  the  rates,  methods,  practices,  and 
service  of  interstate  carriers. 

A  fair  conception  of  the  work  performed  by  the  Commission  in  the 
field  of  regulation  is  not  possible  without  reference  to  the  results  attained 
in  respect  to  these  cases  in  which  formal  complaint  is  not  filed,  nor 
proceedings  of  a  formal  nature  pursued  by  the  complainant.  The 
public  is  not  advised  of  the  full  extent  of  the  work  accomplished  in 
securing,  through  correspondence,  the  voluntary  adjustment  by  carriers 
of  questions  in  dispute  relating  to  interstate  transportation,  nor  is  the 
public  cognizant  of  the  extreme  importance  and  value  of  the  results 
attained. 

Through  the  medium  of  correspondence  is  secured  the  settlement  of 
many  matters  extremely  vexatious  to  shippers.  The  questions  thus 
amicably  adjusted  are  not  alone  questions  affecting  the  interest  of  indi- 
viduals ;  on  the  contrary,  the  effect  of  the  action  taken  by  carriers  in  the 
adjustment  of  these  complaints  is  often  of  widespread  interest  and  ad- 
vantage to  large  communities,  if  not  indeed  of  vital  importance  to  con- 
siderable sections  of  country.  Controversies  arising  out  of  the  relations 
between  the  carriers  themselves  are  likewise,  in  many  instances,  pre- 
sented to  the  Commission  for  arbitration.  The  Commission  is  also 
called  upon  frequently  by  traffic  officials  of  carriers  to  indicate  what  is 


526  AMERICAN  FEDERAL   GOVERNMENT 

considered  to  be  the  proper  and  lawful  course  to  be  pursued  in  respect 
to  the  application  of  rates  or  regulations  affecting  transportation.  Thus 
it  will  be  seen  that  many  great  benefits  result  from  the  adjustment  or 
settlement  through  correspondence  of  questions  informally  submitted 
for  investigation. 

The  traffic  officials  of  the  carriers  have  manifested  to  a  commendable 
degree  a  disposition  and  willingness  to  fairly  and  carefully  consider  the 
merits  of  complaints  thus  called  to  their  attention  by  the  Commission, 
and  have  voluntarily  reduced  their  rates  and  applied  corrective  measures 
in  numerous  cases. 

Naturally  many  of  the  informal  complaints  presented,  while  involving 
grievances  growing  out  of  conditions  related  to  interstate  transportation, 
are  yet  not  within  the  purview  of  the  provisions  of  the  statute  or  the 
jurisdiction  of  the  Commission.  Of  the  total  number  of  complaints  filed 
almost  one-half  were  cases  of  this  nature.  In  approximately  2,500  cases 
the  informal  complaint  made  had  relation  to  matters  within  the  juris- 
diction of  the  Commission,  and  in  nearly  1,400  cases  relief  has  been 
secured  and  amicable  adjustment  effected  through  correspondence, 
without  the  necessity  or  expense  of  formal  proceedings.  In  respect  to 
600  of  these  cases,  including  those  in  which  special  reparation  orders 
were  granted  upon  submission  of  claims  to  the  Commission  by  the  con- 
signee, consignor,  or  by  the  carriers  themselves,  the  remedy  thus  applied 
by  the  carriers  involved  the  reduction  of  rates. 

The  adjustment  of  more  than  600  cases,  including  those  claims  in 
respect  to  which  authority  was  granted  to  carriers  to  make  special  repa- 
ration, resulted  in  refund  to  shippers  of  a  portion  of  the  charges  previ- 
ously collected.  Relief  has  also  been  secured  through  the  intervention 
of  the  Commission  in  respect  to  many  other  miscellaneous  matters, 
among  which  may  be  specially  mentioned  the  securing  of  improved 
service  in  cases  where  shippers  complained  of  being  subjected  to  incon- 
venience and  loss  owing  to  the  failure  or  refusal  of  carriers  to  furnish 
equipment  for  the  transportation  of  their  commodities;  also  through 
expediting  the  settlement  of  claims  filed  against  railroad  companies  in 
cases  where  unreasonable  delay  in  making  final  disposition  is  charged. 

The  carriers  declined  to  take  action  for  the  removal  of  the  cause  of 
complaint  in  875  cases,  basing  their  refusal  upon  the  contention  that 
the  rates  or  practices  in  regard  to  which  complaint  related  were  just 
and  reasonable.  Quite  a  large  number  of  the  informal  complaints  filed 
during  the  year  are  still  pending,  awaiting  further  information  or  advice 
from  the  complainant  or  action  by  the  carrier. 

Two  hundred  and  seventy-six  hearings  and  investigations  of  alleged 
violations  of  the  act  to  regulate  commerce,  including  several  investiga- 
tions under  joint  resolutions  of  Congress,  have  been  had  at  general  ses- 
sions of  the  Commission  at  its  office  in  Washington  and  at  special  ses- 
sions held  in  New  York,  and  other  cities  throughout  the  United  States. 


LEGISLATIVE   PROBLEMS  527 


THE  EMPLOYERS'   LIABILITY  BILL1 

WASHINGTON,  April  10.  —  By  far  the  most  important  bill  of  the  pres- 
ent session  of  Congress  has  passed  the  two  houses,  with  only  one  dis- 
senting vote  recorded  against  it.  Political  exigencies  demanded  that  the 
Republicans  enact  an  employers'  liability  law  to  replace  the  one  recently 
shattered  by  a  Supreme  Court  decision.  The  terms  and  provisions  of 
the  law  were,  in  a  manner  of  speaking,  unimportant.  The  main  thing 
was  to  enact  a  law  which  could  bear  the  title  of  an  employers'  liability 
measure. 

Therefore,  it  has  come  to  pass  that  the  measure  of  largest  general  con- 
sequence passed  by  Congress  at  this  session,  affecting  thousands  of 
people,  was  enacted  after  forty  minutes  of  restricted  discussion  in  the 
House,  and  a  brief  afternoon  of  superficial  and  perfunctory  debate  in 
the  Senate.  Many  of  the  able  lawyers  in  both  branches  of  Congress 
believe  the  act  will  not  stand  the  test  of  the  Supreme  Court.  If  an  em- 
ployers' liability  law  is  finally  to  take  its  place  on  the  statute  book,  they 
believe,  all  of  the  work  will  have  to  be  done  over  again.  Indeed,  so 
widely  prevalent  is  this  belief  that  the  bill,  which  has  been  sent  to  the 
President  for  its  approval,  is  in  several  of  its  features  so  clearly  uncon- 
stitutional that  in  the  House  Mr.  Parker  of  New  Jersey,  Mr.  Payne  of 
New  York,  Mr.  Keifer  of  Ohio,  openly  said  as  much.  Nevertheless, 
they  voted  for  the  bill,  leaving  Mr.  Littlefield  of  Maine  the  sole  dissenter 
in  either  branch  against  the  bill. 

The  conditions  in  the  Senate,  under  which  the  bill  was  hurriedly 
passed  yesterday  afternoon,  caused  Senator  Teller  to  make  earnest  pro- 
test. Senator  Teller  was  not  the  only  person  who  confessed  to  a  lack  of 
information  about  the.  bill.  Many  Senators  said  privately  yesterday 
afternoon  that  they  had  not  even  read  the  House  bill,  which  the  Senate 
passed  without  amendment.  It  is  absurd  on  the  face  of  it  that  there 
should  be  unanimous  agreement  in  both  Houses  of  Congress  on  a  bill 
involving  important  Constitutional  questions.  In  so  small  a  body  as 
the  Supreme  Court,  the  proverbial  division  of  the  justices  is  five  to  four 
on  all  cases  involving  grave  Constitutional  problems.  This  was  the 
division  on  the  previously  enacted  employers'  liability  law. 

The  Senate's  hasty  action  yesterday  afternoon  came  as  a  surprise.  It 
is  no  uncommon  thing  for  the  members  of  the  House  to  follow,  sheep-like, 
in  a  trail  blazed  for  them  by  their  so-called  leaders.  Observers  of  legis- 
lation in  Washington  have  become  accustomed  to  seeing  the  House 
passing  up  undigested  legislation  to  be  properly  whipped  into  shape 
after  thorough  and  intelligent  discussion  in  the  Senate.  It  is.  also  no 
uncommon  sight  to  see  one  of  the  great  annual  appropriation  bills  au- 
thorizing an  expenditure  of  $20,000,000  or  more  yawned  through  the 

1  The  New  York  Evening  Post,  April  10,  1908. 


528  AMERICAN   FEDERAL   GOVERNMENT 

Senate  on  a  dreary  afternoon,  and  practically  without  debate.  But  it 
does  cause  comment  and  surprise  when  a  bill  involving  Constitutional 
rights  is  rattled  through  the  Senate  without  deliberation  and  without  any 
debate  worthy  of  the  name. 

Senator  Knox  was  so  confident  that  the  employers'  liability  law,  which 
recently  failed  to  meet  the  Supreme  Court  test,  was  unconstitutional, 
that,  before  the  court  had  handed  down  its  decision,  he  had  ready  for 
introduction  in  the  Senate  another  measure  intended  to  meet  the  objec- 
tions which  he  felt  sure  the  court  would  raise.  He  precisely  foreshadowed 
the  court's  decision,  and  immediately  introduced  his  bill.  This  is  the 
measure  that  Senator  Teller  referred  to  as  "the  Senate  bill." 

On  January  6  last  the  Supreme  Court  declared  the  previously  enacted 
employers'  liability  act  unconstitutional  upon  the  one  main  ground  that 
it  undertook  to  apply  its  provisions  to  all  common  carriers  engaged  in 
interstate  commerce,  regardless  of  the  fact  that  injuries  may  often  hap- 
pen to  employees  of  such  carriers  who  are  not  at  the  time  of  the  injury 
engaged  in  forwarding  interstate  commerce.  The  decision,  in  which  the 
court  was  divided  —  four  to  five  —  held  that  the  failure  of  Congress  to 
separate  the  employees  who  are  engaged  in  interstate  commerce  at  the 
time  of  the  injury  from  the  mass  of  the  employees  of  the  common  carrier, 
was  sufficient  to  destroy  the  validity  of  the  act. 

Senator  Dolliver,  in  explaining  the  enactment  which  now  awaits  the 
approval  of  the  President,  asserted  that  it  contained  four  substantive 
propositions,  which  he  outlined. 

First,  it  modifies  the  old  law  of  the  negligence  of  coemployees.  The 
old  law,  which  took  root  in  the  United  States  two  generations  ago,  was 
to  the  effect  that  an  employee  injured  by  the  negligence  of  a  fellow- work- 
man could  not  recover.  This  bill  abolishes  that  doctrine,  and  gives  the 
employee  the  right  to  recover  for  injuries  arising  from  the  negligence  of 
his  fellow-workman. 

The  second  proposition  modifies  the  law  whereby,  in  other  generations, 
workmen  were  held  by  the  court  to  assume  the  risks  arising  from  de- 
fective machinery. 

In  the  third  place,  the  present  enactment  modifies  radically  the  law 
of  contributory  negligence.  As  administered  by  our  courts  it  has  been 
uniformly  held  that  an  employee  suffering  an  injury  to  which  his  own 
negligence  contributed  can  not,  by  reason  of  that  participation  in  the 
injury,  have  any  recovery  at  law.  This  act  liberalizes  that  doctrine  of 
the  law.  It  is  based  upon  the  theory  that  where  an  injury  occurs  partly 
by  reason  of  the  negligence  of  the  employer  and  partly  by  reason  of  the 
negligence  of  an  employee,  the  jury  ought  to  determine  what  part  of  the 
injury  arises  from  the  negligence  of  the  plaintiff  and  take  away  from 
the  sum  total  of  his  damages  allowed  that  part  which  can  properly  be 
apportioned  to  his  own  negligence.  That  principle  has  been  called  in 
some  of  the  books  the  "  doctrine  of  comparative  negligence." 


LEGISLATIVE   PROBLEMS  529 

In  the  fourth  place,  the  present  bill  undertakes  to  modify  somewhat 
the  common  law  applicable  to  certain  agreements  or  contracts  made 
between  employers  and  their  workmen,  in  which  the  latter  agree,  in 
consideration  of  some  form  of  insurance  or  indemnity  fund,  to  give  up 
the  right  to  sue  in  the  courts. 


THE  BUREAU   OF   CORPORATIONS 

[The  newly  created  Department  of  Commerce  and  Labor  numbers  among 
its  subdivisions  the  Bureau  of  Corporations.  The  nature  of  the  work  of  this 
bureau  is  set  forth  in  the  following  synopsis  of  the  first  report  of  the  bureau  and 
by  extracts  from  the  report  of  December,  1906.] 


THE  REPORT  OF  DECEMBER,    1904 

THE  first  general  report  of  the  Commissioner  of  Corporations,  James 
R.  Garfield,  covering  the  period  from  the  organization  of  the  bureau  to 
June  30,  1904,  shows  that  the  work  of  the  bureau  up  to  that  date  had 
been  almost  entirely  the  laying  of  a  foundation  of  accurate  knowledge 
of  the  legal  and  general  business  conditions  with  which  the  bureau 
must  deal  and  a  clear  definition  of  the  problems  for  the  consideration  of 
which  it  was  created.  The  result  of  the  work  is  summarized  as 
follows : 

(1)  Commercial  and  industrial  conditions  present  the  foremost  problems 
of  to-day.    There  exists  a  deep-rooted  general  feeling  of  dissatisfaction  with 
existing  conditions.    Some  causes  of  dissatisfaction  are  apparent,  and  the  evils 
very  real  and  great. 

(2)  The  present  legal  conditions  under  which  corporate  business  is  carried 
on  are  extremely  unsatisfactory.     They  admit  of,  and  invite,  extreme  abuse. 
They  are  the  result  of  forced  growth  under  divergent  pressures,  and  in  their 
present  anomalous  state  represent  the  needs  or  demands  of  special  interests 
and  are  not  a  permanent  body  of  law  adopted  to  provide  properly  for  all  the 
interests  involved.     Furthermore,  the  "State  system,"  applied  to  interstate 
businesses,  has  developed  additional  and  peculiar  evils;  a  diversity  so  great 
as  to  amount  in  operation  to  anarchy ;  an  inevitable  tendency  toward  the  lowest 
level  of  lax  regulation,  and  the  unequal  and  disastrous  contest  between  State 
Legislatures  and  commercial  forces  of  national  size  and  power. 

(3)  No  satisfactory  reform  is  to  be  expected  under  the  "State  system"  of 
incorporation. 

(4)  The  Federal  Government  has  at  its  command  sufficient  power  to  remedy 
these  conditions  in  its  control  of  interstate  commerce,  supplemented  by  sub- 
sidiary and  incidental  powers. 

(5)  So  far  the  commerce  clause  of  the  Constitution  has  had  a  negative  de- 
velopment only,  both  under  Congress  and  by  judicial  interpretation.     With 

34 


530  AMERICAN   FEDERAL   GOVERNMENT 

the  exception  of  the  interstate  commerce  act —  the  force  of  which  has  been 
seriously  weakened  by  judicial  interpretation —  and  the  navigation  laws, 
there  has  been  no  really  affirmative  attempt  to  regulate  interstate  commerce. 
The  commerce  clause  has  been  chiefly  used  to  prevent  the  interference  by  States 
with  interstate  commerce. 

(6)  The  creation  of  this  bureau  affords  a  means  for  getting  essential  facts. 
In  addition  to  the  value  to  Congress  of  such  information,  the  publication  of 
facts,  the  dissemination  of  knowledge,  will  bring  into  existence  the  influence 
of  an  enlightened  public  opinion  which  properly  applied  would  go  far  to  develop 
the  sense  of  public  trust  involved  in  the  control  of  private  wealth  and  the  sense 
of  personal  responsibility  on  the  part  of  officers  or  managers  of  corporations. 

(7)  The  work  of  the  bureau  can  proceed  along  the  lines  of  inquiry  and  re- 
port, adding  fact  upon  fact  in  proof  of  existing  conditions,  but  no  real  remedy 
can  be  expected  until  Congress  takes  action  by  affirmative  use  of  the  great 
powers  granted  under  the  commerce  clause  of  the  Constitution. 

(8)  The  possible  Congressional  actions  are: 

(a)  Delegation  to  the  States  of  control  over  interstate  commerce.    This  is 
believed  to  be  unconstitutional,  and  secondly  subject  to  all  the  objections  ap- 
plicable to  the  present  "State  system." 

(b)  Compulsory  Federal  incorporation  of  interstate  commerce  companies. 
This  is  probably  legally  practicable,  but  it  involves  radical  industrial  and  politi- 
cal changes  by  the  centralization  of  power  in  the  Federal  Government,  and 
presents  serious  difficulties  because  of  its  effect  upon  the  authority  of  the 
States  over  such  corporations  in  matters  of  taxation  and  local  regulation.    Any 
optional  law  of  this  character  would  not  overcome  these  difficulties. 

(c)  Federal  license  or  franchise  for  interstate  commerce.     Legally  this  is 
practicable;  it  avoids  the  legal  difficulties  of  national  incorporation  as  well  as 
the  practical  one  of  centralization  of  power,  and  gives  the  national  Govern- 
ment direct  regulation  of  the  agencies  of  interstate  and  foreign  commerce. 

(9)  I  therefore  beg  to  suggest  that  Congress  be  requested  to  consider  the 
advisability  of  enacting  a  law  for  the  legislative  regulation  of  interstate  and 
foreign  commerce  under  a  license  of  franchise,  which  in  general  should  provide 
as  follows: 

(a)  The  granting  of  a  Federal  franchise  or  license  to  engage  in  interstate 
commerce. 

(b)  The  imposition  of  all  necessary  requirements  as  to  corporate  organ- 
ization and  management  as  a  condition  precedent  to  the  grant  of  such  franchise 
or  license. 

(c)  The  requirement  of  such  reports  and  returns  as  may  be  desired  as  a 
condition  of  the  retention  of  such  franchise  or  license. 

(d)  The  prohibition  of  all  corporations  and  corporate  agencies  from  en- 
gaging in  interstate  and  foreign  commerce  without  such  Federal  franchise  or 
license. 

(e)  The  full  protection  of  the  grantees  of  such  franchise  or  license  who  obey 
the  laws  applicable  thereto. 

(f)  The  right  to  refuse  or  withdraw  such  franchise  or  license  in  case  of  vio- 
lation of  law,  with  appropriate  right  of  judicial  appeal  to  prevent  abuse  of 
power  by  the  administrative  officer. 

This  bureau,  under  the  direction  of  the  secretary  of  Commerce  and  Labor, 
affords  the  appropriate  machinery  for  the  administration  of  such  a  law.    It  is 


LEGISLATIVE   PROBLEMS  531 

fully  appreciated  that  this  recommendation  is  not  new,  but  has  been  the  sub- 
ject of  most  serious  and  exhaustive  consideration  by  public  officials  and  com- 
missions, as  well  as  private  persons  technically  well  qualified  to  speak.  The 
Industrial  Commission,  in  its  final  report  on  this  subject,  recommended,  among 
other  things,  the  adoption  of  a  plan  quite  similar  to  this.  It  is  neither  necessary 
nor  wise  to  attempt,  in  this  report,  to  elaborate  the  details  of  such  an  act ;  but 
the  bureau  has  upon  its  files  abundant,  and  in  many  particulars,  exhaustive 
information  which  would  be  immediately  available  for  the  use  of  Congress  or 
any  committee  thereof  which  might  have  under  consideration  such  a  measure. 


WORK  OF  THE  BUREAU 

The  report  begins  with  a  recital  of  the  law  under  which  the  bureau 
was  created,  followed  by  a  description  of  its  organization.  Its  first  work 
was  a  thorough  study  of  the  purposes  of  its  organic  law  and  the  jurisdic- 
tion and  powers  of  the  Commissioner.  The  report  says  that  the  work  of 
the  bureau  falls  naturally  into  the  following  divisions : 

(a)  Special  investigations  of  particular  corporations,  joint  stock  companies, 
or  corporate  combinations  engaged  in  interstate  and  foreign  commerce.     For 
this  purpose  the  commissioner  is  given  power  to  compel  the  production  of 
testimony. 

(b)  The  collection  and  publication  of  useful  information  regarding  corpora- 
tions engaged  in  interstate  and  foreign  commerce. 

(c)  Insurance  companies  are  included  specifically  under  the  work  of  ob- 
taining useful  information ;  but  because  of  the  decisions  of  our  courts  regarding 
insurance  the  question  of  the  power  of  the  commissioner  over  insurance  com- 
panies requires  special  consideration.    Federal  control  over  insurance  and  the 
exercise  over  insurance  corporations  of  the  compulsory  powers  of  the  com- 
missioner rest  upon  the  same  legal  basis,  raising  at  the  outset  the  question 
whether  insurance  is  in  any  of  its  forms  interstate  commerce.  .  .  .  The  rapid 
development  of  insurance  business,  its  extent,  the  enormous  amount  of  money 
and  the  diversity  of  interests  involved,  and  the  present  business  methods  sug- 
gest that  under  existing  conditions  insurance  is  commerce,  and  may  be  sub- 
jected to  Federal  regulations  through  affirmation  action. by  Congress.    The 
whole  question  is  receiving  most  careful  consideration  upon  both  legal  and 
economic  grounds. 

(d)  Legal  research  —  A  most  important  branch  of  work  is  the  determina- 
tion of  the  entire  legal  situation  applicable  to  the  bureau,  to  its  powers,  and  to 
its  present  and  future  work,  developing  the  same  along  the  following  lines : 

(1)  Compiling  and  digesting  court  decisions  applicable  to  the  bureau,  to  its 
powers  of  investigation,  its  legal  status  and  the  means  by  which  it  shall  per- 
form its  functions,  and  to  the  great  questions  and  problems  which  are  before 
the  bureau. 

(2)  Compiling  and  digesting  Federal  and  State  statute  laws  relating  to  the 
purposes  of  the  bureau. 

(3)  Compiling  and  comparing  the  laws  of  foreign  countries  upon  kindred 
subjects. 


532  AMERICAN   FEDERAL   GOVERNMENT 

(4)  Compiling  and  digesting  in  summarized  and  available  form  facts  show- 
ing the  actual  operation  of  such  laws  now  in  existence. 

(5)  Preparing  in  outline  such  possible  and  desirable  modifications  of  exist- 
ing laws  relating  to  the  subject-matter  of  the  Bureau's  work  as  may  be  from 
time  to  time  indicated  by  development  of  that  work. 

(6)  Determining  the  legal  relations  that  would  be  established  by  the  enact- 
ment of  such  possible  modifications  with  especial  reference  to  the  effects  thereof 
on  State  laws,  and  the  interrelation  of  Federal  and  State  jurisdictions. 

(e)  Economic  and  statistical  work — In  this  work  there  will  be  the  greatest 
possible  use  of  all  material  available  from  other  Government  offices  in  order 
to  avoid  unnecessary  duplication  of  effort,  expense,  and  almost  inevitable  con- 
flicts in  results.  Statistics  will  be  compiled  and  published  only  for  the  purpose 
of  properly  presenting  the  special  problems  with  which  the  Bureau  is  dealing. 
The  economic  work  will  necessarily  be  of  vital  importance  in  preparing  and 
presenting  the  results  of  special  investigations,  and  in  rightly  interpreting  the 
mass  of  information  obtained. 

The  commissioner's  powers  are  defined  as  follows: 

Subject  to  the  direction  of  the  secretary  of  commerce  and  labor,  to  investi- 
gate the  organization,  conduct,  and  management  of  corporations  (other  than 
common  carriers)  engaged  in  interstate  commerce ;  to  compel  by  subpoena  the 
attendance  of  witnesses,  and  the  production  of  books,  papers,  and  documents 
for  such  purpose;  to  administer  oaths;  to  obtain  the  aid  of  the  Federal  courts 
in  the  procuring  of  such  testimony ;  to  require  reports  from  such  corporations ; 
to  investigate  the  legal  conditions  applicable  to  such  corporations,  and  the 
legal  questions  raised  thereby;  and  to  report  to  the  President  the  informa- 
tion so  acquired.  The  commissioner  may  determine  the  form  of  procedure 
in  investigations,  subject  to  the  qualification  that  hearings  may  not  be  in 
public. 

The  commissioner  has  no  judicial  powers,  nor  can  he  make  or  enforce  any 
orders  against  corporations  or  private  individuals  other  than  those  directly 
necessitated  in  procuring  information.  He  can  impose  no  fines  or  penalties. 
Even  within  the  scope  of  his  duties,  he  must  invoke  the  aid  of  a  Federal  court 
for  the  enforcement  of  his  proper  orders  or  requirements.  ....  His  entire 
compulsory  powers  of  inquiry  are  further  confined  to  the  consideration  of  facts 
relating  to  corporations,  joint  stock  companies,  or  corporate  combinations. 

The  study  of  the  law  and  industrial  conditions,  as  above  outlined, 
resulted  in  the  adoption  of  the  following  general  policy  regarding  the 
Bureau  and  the  conduct  of  its  work: 

As  the  commissioner  is  not  charged  with  the  enforcement  of  any  law  nor 
with  the  prosecution  of  persons  or  corporations  alleged  to  be  or  found  to  be 
violating  any  law,  the  work  of  the  Bureau  is  primarily  an  inquiry  into  the  in- 
dustrial and  legal  methods  used  by  the  agencies  engaged  in  interstate  and  for- 
eign commerce,  and  the  purpose  of  such  inquiry  to  afford  accurate  knowledge 
of  industrial  conditions  upon  which  there  may  be  based  intelligent  legislative 
action. 


LEGISLATIVE  PROBLEMS  533 

In  the  investigation  of  special  corporations  the  commissioner  will  necessarily 
acquire  knowledge  of  business  facts,  the  publication  of  which  would  be  an  in- 
fringement of  private  rights.  The  method  of  reporting  and  making  public  the 
results  of  these  investigations  affords  a  means,  through  the  President,  for  pro- 
tecting private  rights.  In  this  particular  the  method  of  procedure  is  similar 
to  the  action  and  reports  of  the  comptroller  of  the  currency  regarding  national 
banks.  There  will  thus  be  presented  to  Congress  all  relevant  facts  except  such 
as  would  afford  to  any  corporation  information  which  would  injure  the  legiti- 
mate business  of  a  competitor  and  destroy  the  incentive  for  individual  superi- 
ority and  thrift. 

While  the  purpose  of  inquiries  and  special  investigations  is  not  to  discover 
violations  of  Federal  statutes,  yet,  if  facts  are  found  showing  such  violation, 
they  will  be  reported  as  other  facts  to  the  President  for  such  consideration  and 
action  as  may  be  appropriate  or  necessary. 

Under  present  industrial  conditions,  secrecy  and  dishonesty  in  promotion, 
overcapitalization,  unfair  discrimination  by  means  of  transportation  and  other 
rebates,  unfair  and  predatory  competition,  secrecy  of  corporate  administration, 
and  misleading  or  dishonest  financial  statements  are  generally  recognized  as 
the  principal  evils.  It  is  admitted  that  the  chief  difficulty  in  the  way  of  pro- 
viding ample  remedies  has  been  the  conflict  between  Federal  and  State  au- 
thority as  to  jurisdiction  over  many  of  the  acts  of  great  industrial  agencies,  and 
the  uncertainty  of  the  extent  of  regulation  exercised  or  to  be  exercised  by  the 
Federal  Government  over  agencies  engaged  in  both  State  and  interstate 
commerce. 

The  immediate  work  is,  hence,  not  to  prove  the  existence  of  such  evils  and 
difficulties,  but  to  find  possible  remedies  for  them.  The  remedies  must  not  be 
simply  to  destroy  existing  bad  conditions —  mere  destruction  affords  only 
temporary  relief —  but  they  must  provide  something  better  to  take  the  place 
of  what  is  changed.  The  imposition  of  severe  penalties  will  not  end  industrial 
evils.  We  must  find  and  remove  their  cause,  leaving  only  the  extreme  or  ex- 
ceptional cases  to  be  dealt  with  by  criminal  statutes. 

The  Government  should  secure  means  for  fair  business  competition,  free- 
dom from  unjust  discrimination,  such  publicity  of  corporate  organization  and 
management  as  will  disclose  real  financial  worth  and  methods,  should  pro- 
vide a  jurisdiction  broad  enough  to  meet  existing  conditions,  and  then  should 
fully  protect  the  person  or  corporation  obeying  the  law  and  promptly  punish 
the  violator  of  the  law. 

The  facts  upon  which  remedial  legislation  must  be  based  are  in  the  pos- 
session of  persons  and  corporations  engaged  in  business —  some  have  been 
given  to  the  public,  others  have  been  incidentally  furnished  through  judicial 
and  legislative  proceedings,  and  others  have  been  held  as  business  secrets.  As 
to  the  first  two  classes,  the  Bureau  has  been  systematically  collecting  them 
from  all  available  sources;  as  to  the  last  class,  special  inquiries  have  been 
made  or  are  being  made  from  particular  corporations.  In  dealing  with  this 
class  of  facts  it  is  recognized  that  there  is  a  fair  ground  for  discussion  as  to 
whether  certain  questions  are  infringements  upon  private  rights;  hence  the 
following  method  of  procedure  has  been  adopted: 

Inquiry  is  made  directly  from  the  persons  or  corporations  under  investiga- 
tion ;  if  it  be  determined  that  the  Government  is  entitled  to  the  information,  it 
must  be  given  voluntarily  or  the  compulsory  process  of  the  statute  will  be  in- 


534  AMERICAN   FEDERAL   GOVERNMENT 

yoked ;  if  the  Government  is  not  entitled  to  the  information,  then  no  detective 
method  will  be  used  to  discover  it. 

There  has  been  no  attempt  to  define  the  scope  of  the  inquiry  to  be  made, 
nor  to  limit  it  to  certain  classes  of  facts.  All  facts  which  will  give  information 
regarding  interstate  and  foreign  commerce,  or  will  assist  Congress  in  regulating 
such  commerce,  are  subjects  of  legitimate  inquiry. 

One  line  of  inquiry  concerning  which  question  has  been  raised  is  as  to  the 
cost  of  production  of  articles  used  in  or  subjects  of  interstate  and  foreign  com- 
merce. So  far  it  has  not  been  necessary  to  test  this  question  in  court,  but  it  is 
believed  that  aside  from  any  other  reason  the  question  is  proper  because  of  the 
power  of  Congress  to  impose  tariff  duties  in  the  regulation  of  commerce.  The 
ideal  tariff  duty  is  the  difference  between  the  cost  of  production  at  home  and 
abroad ;  hence  Congress  has  the  right  to  know  what  is  the  cost  of  production. 
Furthermore,  it  is  claimed  that  the  tariff  gives  an  unfair  advantage  to  corpora- 
tions and  persons  engaged  in  the  manufacture  and  distribution  of  protected 
articles  which  are  the  subjects  of  interstate  and  foreign  commerce.  Congress 
has  the  right  to  know  whether  this  be  true  or  not,  and  this  Bureau  affords  a 
most  appropriate  and  efficient  means  for  obtaining  such  information. 

In  brief,  the  policy  of  the  Bureau  in  the  accomplishment  of  the  purposes  of 
its  creation  is  to  cooperate  with,  not  antagonize,  the  business  world;  the  im- 
mediate object  of  its  inquiries  is  the  suggestion  of  constructive  legislation,  not 
the  institution  of  criminal  prosecutions  It  purposes,  through  exhaustive  in- 
vestigations of  law  and  fact,  to  secure  conservative  action  and  to  avoid  ill- 
considered  attack  upon  corporations  charged  with  unfair  or  dishonest  prac- 
tices. Legitimate  business  --  law-respecting  persons  and  corporations  — 
have  nothing  to  fear  from  the  proposed  exercise  of  this  great  governmental 
power  of  inquiry. 

The  report  goes  on  to  discuss  corporation  law,  and  the  present  system 
of  incorporation  by  States;  the  various  Federal  and  State  anti-trust 
laws,  tax  laws,  and  laws  against  unfair  competition ;  the  constitutional 
powers  of  Congress  over  corporate  business,  concluding  with  remedial 
legislation. 


ANNUAL  REPORT  OF  THE  COMMISSIONER  OF  CORPORATIONS   1906 

SIR:  I  have  the  honor  to  submit  the  report  of  the  Commissioner  of 
Corporations  for  the  fiscal  year  ended  June  30,  1906. 

There  have  been  no  changes  in  the  Act  of  Feburary  14,  1903,  by 
which  the  Bureau  was  created.  Certain  important  statutory  changes, 
however,  have  taken  place,  which  do  affect  the  Bureau;  first,  the  Act 
of  Congress  approved  June  30,  1906,  defining  the  extent  to  which 
immunity  from  prosecution  shall  be  allowed  to  those  giving  informa- 
tion under  the  compulsory  powers  of  the  Commissioner,  which  act 
merely  declares  and  makes  unquestionable  the  clear  intent  of  the  exist- 


LEGISLATIVE   PROBLEMS  535 

ing  law;  and  second,  the  so-called  railway-rate  law,  which  amends  the 
Interstate  Commerce  Act  and  acts  amendatory  thereof. 

The  total  appropriations  for  the  Bureau  for  the  said  fiscal  year  were 
$217,879.40.  The  amount  of  $136,535.80  was  expended.  The  appro- 
priations for  the  fiscal  year  1906  to  1907  are  $185,920. 

The  number  of  persons  employed  by  the  Bureau  on  June  30,  1906,  was 
73.  The  estimates  for  the  year  ending  June  30,  1908,  are  $248,220. 

As  the  investigations  conducted  by  the  Bureau  often  expand  in  un- 
foreseen directions  it  is  impossible  to  estimate  with  accuracy  the  specific 
work  which  will  be  done  in  a  given  period.  It  has  been,  therefore,  wise 
to  keep  the  organization  in  a  flexible  condition,  so  that  its  force  may 
be  applied  as  the  exigencies  of  the  work  develop;  with  the  lump  sum 
appropriation  it  has  been  possible  to  adapt  the  means  to  the  end  desired 
with  comparatively  little  waste  of  time  or  money. 

The  legal  work  of  the  Bureau  in  the  past  year  has  been  largely  con- 
cerned with  the  interpretation  of  statutes  relating  to  transportation, 
together  with  a  consideration  of  numerous  proposed  forms  of  legisla- 
tion on  this  subject.  Considerable  time  also  has  been  devoted  to 
laws  relating  to  railway  discriminations.  The  report  of  the  Commis- 
sioner on  the  Transportation  of  Petroleum,  which  dealt  almost  entirely 
with  railway  discriminations  in  favor  of  the  Standard  Oil  Company, 
has  led  to  a  very  careful  consideration  of  the  interstate  commerce  act, 
the  Elkins  Act,  and  various  other  laws  affecting  transportation.  Pur- 
suant to  the  letter  of  the  President,  submitting  the  said  report  to  Con- 
gress, the  Department  of  Justice  has  taken  up  the  discriminations  set 
forth  in  the  said  report  and  assistance  has  been  given  by  this  Bureau 
to  the  Department  of  Justice  in  preparing  criminal  cases  in  connection 
therewith. 

Digests  of  the  various  State  corporation  laws  in  the  Bureau  have  been 
kept  up  to  date  and  compilations  have  been  made  of  certain  branches 
of  such  laws. 

During  the  course  of  the  investigation  of  the  oil  industry  it  was  dis- 
covered that  a  very  widespread  system  of  railway  discriminations  existed 
in  favor  of  the  Standard  Oil  Company,  affecting  a  very  large  propor- 
tion of  the  country  and  resulting  substantially  in  giving  to  the  Standard 
Oil  Company  an  overwhelming  advantage  in  transportation  in  almost 
all  sections  of  the  country;  that  this  system  had  been  in  existence  for 
a  number  of  years,  and  that  largely  by  virtue  of  it  the  Standard  had 
been  able  to  restrict  or  eliminate  competition  throughout  many  parts  of 
the  country  and  thereafter  reap  the  benefits  of  monopoly.  These  rail- 
way discriminations  took  various  forms,  often  very  ingenious  in  their 
nature,  and  so  skilfully  concealed  that  their  existence  was  very  rarely 
suspected  even  by  the  active  competitors  of  the  Standard,  although  such 
competitors  knew  that  in  general  they  were  doing  business  at  a  disad- 
vantage. This  system  of  discriminations  was  discovered  by  the  agents 


536  AMERICAN   FEDERAL   GOVERNMENT 

of  the  Bureau  when  examining  the  oil-shipping  records  and  accounts 
of  the  various  railroads. 

So  important  was  the  effect  of  these  discriminations  that  it  was  deemed 
best  to  make  a  special  report  on  the  Transportation  of  Petroleum. 
This  report  was  submitted  to  the  President  and  by  him  transmitted 
to  Congress  on  May  2,  1906.  The  regular  adjournment  of  Federal 
Courts  for  the  summer  has  made  it  impossible  as  yet  to  secure  the  trial 
of  any  of  the  criminal  cases  growing  out  of  this  investigation,  but  in- 
dictments containing  8,193  counts  have  been  returned  by  the  various 
grand  juries.  It  is  claimed  that  the  various  devices  by  which  these 
discriminations  were  obtained  are  permissible  under  the  law,  but  this 
contention  seems  untenable.  The  purpose  of  the  law  is  to  provide 
equality  of  opportunity  and  treatment  to  all  shippers.  The  law  deals 
with  the  result,  not  the  device  by  which  the  result  is  accomplished. 
The  more  clever  the  device  the  more  flagrant  is  the  violation  of  the 
law,  for  wilful  intent  to  evade  is  shown.  If  this  be  not  the  true  inter- 
pretation of  the  law,  it  becomes  worse  than  useless,  because  it  offers 
false  security  and  opens  the  door  to  fraud. 

A  most  striking  and  important  result  immediately  followed  the  in- 
vestigation of  the  Bureau;  the  railroads  canceled  substantially  all  the 
secret  rates,  illegal  or  improper  discriminations,  and  in  many  cases  the 
discriminations  in  open  rates.  Thus  a  widespread  system  of  railway 
discrimination  was  wiped  out  of  existence  because  of  the  discovery  by 
the  agents  of  the  Bureau  and  before  any  prosecutions  were  brought 
thereon.  The  shippers  of  oil  advise  the  Bureau  that  for  the  first  time 
in  many  years  they  are  now  rapidly  obtaining  equality  of  treatment 
from  the  transportation  companies. 

Work  on  the  "other  phases  of  the  oil  industry  and  the  investigations 
of  the  tobacco,  steel,  sugar,  and  coal  industries  are  well  advanced; 
special  reports  thereon  will  be  made  in  due  course.  An  inquiry  into 
canal  and  water  transportation  has  been  started. 

The  work  of  the  Bureau  during  the  past  year  presents  very  strik- 
ingly the  power  of  efficient  publicity  for  the  correction  of  corporate 
abuses  wholly  apart  from  the  penal  or  remedial  processes  of  the  Courts. 
No  more  convincing  illustration  of  this  power  has  been  given  than  the 
experience  of  the  Bureau  in  connection  with  the  above-mentioned 
system  of  railway  discriminations  in  favor  of  the  Standard  Oil  Com- 
pany and  the  change  of  the  system  by  its  mere  exposure.  In  most 
cases,  as  soon  as  the  officers  of  a  railroad  were  aware  that  the  agent  of 
the  Bureau  had  discovered  a  discrimination,  the  improper  rate  was 
canceled  or  the  discrimination  removed.  This  action  on  the  part  of 
the  railroad  officers  was  all  the  more  striking  inasmuch  as  it  could  hardly 
have  been  taken  with  a  view  to  escape  from  criminal  liability,  because 
that  criminal  liability,  if  existing  at  all,  had  already  been  incurred  and 
could  not  be  mitigated  or  evaded  by  cancellation  of  the  discriminatory 


LEGISLATIVE  PROBLEMS  537 

rate  or  regulation ;  and  further,  the  fact  of  that  voluntary  action  was  a 
convincing  admission  of  the  unfairness  of  the  rate  or  regulation.  In 
short,  the  experience  of  the  Bureau  indicates  that  enforced  publicity  of 
facts  is  a  most  efficient  means  of  putting  an  end  to  such  discriminations. 

A  great  advance  toward  publicity  has  been  made  by  the  new  law 
increasing  the  powers  of  the  Interstate  Commerce  Commission.  All 
books  and  records  of  railroad  companies  are  now  open  to  the  examina- 
tion of  agents  of  the  Commission.  The  Government  will  no  longer  be 
hampered  by  being  limited  to  search  for  single  items,  but  every  entry, 
every  record  will  be  scrutinized. 

The  meat-inspection  and  pure-food  laws  are  the  most  recent  examples 
of  the  extension  of  the  principle  of  publicity.  The  meat-inspection 
law  goes  further  by  affirmatively  .establishing  the  principle  of  impos- 
ing a  condition  precedent  upon  the  right  to  engage  in  interstate  com- 
merce. Meat  products  cannot  be  transported  in  interstate  and  foreign 
commerce  until  they  have  been  subjected  to  Federal  inspection  and 
such  inspection  evidenced  by  labels.  This  is  in  effect  the  requirement 
of  a  license  to  engage  in  interstate  commerce. 

The  investigations  conducted  by  the  Bureau,  the  effect  of  the  inter- 
state-commerce laws,  the  results  of  prosecutions  under  the  anti-trust 
law,  the  reasons  which  compelled  the  enactment  of  the  meat-inspection 
and  pure-food  laws,  all  lead  me  to  earnestly  urge  again  the  desirability 
of  and  necessity  for  the  establishment  of  Federal  inspection  and  super- 
vision of  the  greater  industrial  corporations  engaged  in  interstate  and 
foreign  commerce,  substantially  as  outlined  in  the  license  plan  sug- 
gested in  my  annual  reports  for  1904  and  1905. 

Such  a  plan  is  but  the  extension  of  a  well-tried  and  efficient  means 
for  the  proper  regulation  of  business.  It  will  not  interfere  with  the 
power  and  authority  of  the  States  over  the  corporations  created  under 
State  laws.  It  will  be  the  exercise  of  direct  affirmative  power  by  the 
Federal  Government  over  the  actions  of  corporations  when  engaged  in 
interstate  and  foreign  commerce,  which  cannot  be  dealt  with  by  State 
authority.  It  will  give  a  simple  and  effective  method  of  dealing  with 
such  corporations  in  a  jurisdiction  coextensive  with  their  field  of 
operation. 

Such  inspection  is  not  an  invasion  of  private  rights.  A  corporation 
should  not  be  treated  as  an  individual;  it  has  great  powers  and  enjoys 
public  rights  which  an  individual  cannot  exercise;  it  is  given  some  of 
the  attributes  of  sovereignty,  i.  e.,  perpetual  life,  and  in  some  instances 
the  right  of  eminent  domain;  the  unrestricted  exercise  of  its  powers 
may  permit  it  to  grow  strong  enough  to  unduly  influence  and  in  meas- 
ure control  the  political  life  of  the  State  which  created  it.  Such  a  result 
would  be  intolerable.  Hence,  for  reasons  of  public  safety  and  self- 
preservation  a  government  must  retain  and  exercise  proper  regulation 
of  and  control  over  corporations.  Such  regulation  and  control  can  not 


538  AMERICAN  FEDERAL  GOVERNMENT 

be  wisely  exercised  unless  the  government  has  full  and  accurate  knowl- 
edge of  the  ownership,  management,  and  properties  of  corporations. 
This  knowledge  can  only  be  obtained  by  opening  all  the  books  and 
records  of  corporations  to  public  inspection,  but  protecting,  of  course, 
the  corporation  from  unreasonable  examination  or  the  injurious  ex- 
posure of  its  legitimate  business. 

The  suggested  Federal  license  law  will  restore  individual  responsi- 
bility and  prevent  the  corporation  from  being  the  hiding  place  of  the 
irresponsible,  dishonest,  or  corrupt  manager.  As  long  as  the  individ- 
ual can  hide  behind  a  corporation,  can  conceal  his  acts  upon  the  records 
of  a  corporation,  can  escape  personal  responsibility  by  means  of  the 
corporation,  so  long  will  the  corporation  be  used  as  an  agency  for  im- 
position, fraud,  and  corruption.  The  moment  the  books  and  records 
of  a  corporation  are  open  to  proper  public  inspection  the  danger  of 
such  wrongs  will  be  reduced  to  a  minimum.  The  corporation  is  not 
then  soulless,  for  the  individuals  who  control  it  are  known,  and  personal 
responsibility  for  its  actions  can  be  instantly  fixed  upon  them. 

Such  a  law  will  afford  a  means  for  gaining  accurate  information,  so 
that  the  people  of  our  country  may  form  an  intelligent  opinion  of  indus- 
trial conditions,  and  not  be  driven  to  extreme  and  unwise  action  by 
the  clamor  of  those  who  assail  all  great  corporate  interests  because  some 
have  done  ill. 

Above  all,  a  license  system  will  provide  the  most  effective  method 
for  dealing  with  the  corporation  whose  managers  violate  law,  by  pro- 
viding that  the  penalty  for  such  violation  shall  be  the  revocation  of 
the  license,  and  the  consequent  denial  of  the  opportunity  to  engage  in 
interstate  commerce.  Such  a  penalty  should  not,  of  course,  be  imposed 
without  affording  the  corporation  opportunity  to  appeal  to  the  courts 
and  obtain  necessary  protection  against  unjustifiable  or  improper  ex- 
ecutive action. 

Respectfully,  JAMES  RUDOLPH  GARFIELD, 

Commissioner  of  Corporations. 

The  SECRETARY  OF  COMMERCE  AND  LABOR. 


PRESERVATION  AND   DEVELOPMENT  OF  NATURAL 
RESOURCES 

[The  natural  resources  of  the  United  States  appeared  unlimited  even  in  the 
last  generation,  but  at  the  present  time  the  nation  and  its  leaders  are  coming  to 
realize  that  the  wasteful  methods  of  exploitation  which  have  thus  far  been  em- 
ployed can  no  longer  be  tolerated  lest  the  county  should  lose  its  rich  inheritance. 
In  order  to  preserve  and  develop  the  natural  resources,  new  administrative 
services  have  been  established  in  the  federal  and  state  governments,  and  laws 


LEGISLATIVE   PROBLEMS  539 

have  been  passed  designed  to  protect  the  national  wealth  against  wasteful 
methods  of  exploitation.  The  questions  involved  in  this  matter  are  illustrated 
by  the  following  selections.] 

FROM  THE  SECOND  ANNUAL   MESSAGE  OF  PRESIDENT  CLEVELAND, 

DECEMBER,   1886 

THE  recommendations  of  the  Secretary  of  the  Interior  and  the  Commis- 
sioner of  the  General  Land  Office  looking  to  the  better  protection  of 
public  lands  and  of  the  public  surveys,  the  preservation  of  national  for- 
ests, the  adjudication  of  grants  to  States  and  incorporations  and  of 
private  land  claims,  and  the  increased  efficiency  of  the  public-land 
service,  are  commended  to  the  attention  of  Congress.  To  secure  the 
widest  distribution  of  public  lands  in  limited  quantities  among  settlers 
for  residence  and  cultivation,  and  thus  make  the  greatest  number  of 
individual  homes,  was  the  primary  object  of  the  public-land  legislation 
in  the  early  days  of  the  republic.  This  system  was  a  simple  one.  It 
commenced  with  an  admirable  scheme  of  public  surveys,  by  which  the 
humblest  citizen  could  identify  the  tract  upon  which  he  wished  to  estab- 
lish his  home.  The  price  of  lands  was  placed  within  the  reach  of  all  the 
enterprising,  industrious,  and  honest  pioneer  citizens  of  the  country. 
It  was  soon,  however,  found  that  the  object  of  the  laws  was  perverted, 
under  the  system  of  cash  sales,  from  a  distribution  of  land  among  the 
people  to  an  accumulation  of  land  capital  by  wealthy  and  speculative 
persons.  To  check  this  tendency  a  preference  right  of  purchase  was 
given  to  settlers  on  the  land,  a  plan  which  culminated  in  the  general  Pre- 
emption Act  of  1841. 

The  foundation  of  this  system  was  actual  residence  and  cultivation. 
Twenty  years  later  the  homestead  law  was  devised  more  surely  to  place 
actual  homes  in  the  possession  of  actual  cultivators  of  the  soil.  The 
land  was  given  without  price,  the  sole  conditions  being  residence,  im- 
provement, and  cultivation.  Other  laws  have  followed,  each  designed 
to  encourage  the  acquirement  and  use  of  land  in  limited  individual 
quantities.  But  in  later  years  these  laws,  through  vicious  administra- 
tive methods  and  under  changed  conditions  of  communication  and 
transportation,  have  been  so  evaded  and  violated  that  their  beneficent 
purpose  is  threatened  with  entire  defeat.  The  methods  of  such  evasions 
and  violations  are  set  forth  in  detail  in  the  reports  of  the  Secretary  of  the 
Interior  and  Commissioner  of  the  General  Land  Office.  The  rapid 
appropriation  of  our  public  lands  without  bona  fide  settlement  or  culti- 
vation, and  not  only  without  intention  of  residence,  but  for  the  purpose 
of  their  aggregation  in  large  holdings,  in  many  cases  in  the  hands  of 
foreigners,  invites  the  serious  and  immediate  attention  of  Congress. 

The  energies  of  the  land  department  have  been  devoted,  during 
the  present  administration,  to  remedy  defects  and  correct  abuses  in  the 


540  AMERICAN   FEDERAL   GOVERNMENT 

public-land  service.  The  results  of  these  efforts  are  so  largely  in  the 
nature  of  reforms  in  the  processes  and  methods  of  our  land  system  as  to 
prevent  adequate  estimate;  but  it  appears  by  a  compilation  from  the 
reports  of  the  Commissioner  of  the  General  Land  Office,  that  the  im- 
mediate effect  in  leading  cases  which  have  come  to  a  final  termination, 
has  been  the  restoration  to  the  mass  of  public  lands  of  2,750,000  acres; 
that  2,370,000  acres  are  embraced  in  investigations  now  pending  before 
the  Departments  of  the  courts,  and  that  the  action  of  Congress  has  been 
asked  to  effect  the  restoration  of  2,790,000  acres  additional;  besides 
which  four  million  acres  have  been  withheld  from  reservation,  and  the 
rights  of  entry  thereon  maintained. 

I  recommend  the  repeal  of  the  Preemption  and  Timberculture  Acts, 
and  that  the  homestead  laws  be  so  amended  as  better  to  secure 
compliance  with  their  requirements  of  residence,  improvement,  and  cul- 
tivation for  the  period  of  five  years  from  date  of  entry,  without  com- 
mutation or  provision  for  speculative  relinquishment.  I  also  recommend 
the  repeal  of  the  desert-land  laws,  unless  it  shall  be  the  pleasure  of  the 
Congress  so  to  amend  these  laws  as  to  render  them  less  liable  to  abuses. 
As  the  chief  motive  for  an  evasion  of  the  laws,  and  the  principal  cause 
of  their  result  in  land  accumulation  instead  of  land  distribution,  is  the 
facility  with  which  transfers  are  made  of  the  right  intended  to  be  secured 
to  settlers,  it  may  be  deemed  advisable  to  provide  by  legislation  some 
guards  and  checks  upon  the  alienation  of  homestead  rights  and  lands 
covered  thereby  until  patents  issue. 


ADDRESS   OF   PRESIDENT   ROOSEVELT   ON   NATURAL 

RESOURCES,   BEFORE   THE   MEETING    OF 

GOVERNORS,    1908 

GOVERNORS  of  the  several  States ;  and  gentlemen :  I  welcome  you  to 
this  conference  at  the  White  House.  You  have  come  hither  at  my  re- 
quest so  that  we  may  join  together  to  consider  the  question  of  the  con- 
servation and  use  of  the  great  fundamental  sources  of  wealth  of  this 
nation.  So  vital  is  this  question,  that  for  the  first  time  in  our  history  the 
chief  executive  officers  of  the  States  separately,  and  of  the  States  together 
forming  the  nation,  have  met  to  consider  it. 

With  the  Governors  come  men  from  each  state  chosen  for  their  special 
acquaintance  with  the  terms  of  the  problem  that  is  before  us.  Among 
them  are  experts  in  natural  resources  and  representatives  of  national 
organizations  concerned  in  the  development  and  use  of  these  resources ; 
the  Senators  and  Representatives  in  Congress ;  the  Supreme  Court,  the 
Cabinet,  and  the  Inland  Waterways  Commission  have  likewise  been 
invited  to  the  conference,  which  is  therefore  national  in  a  peculiar  sense. 


LEGISLATIVE   PROBLEMS  541 

This  conference  on  the  conservation  of  natural  resources  is  in  effect 
a  meeting  of  the  representatives  of  all  the  people  of  the  United  States 
called  to  .consider  the  weightiest  problem  now  before  the  nation ;  and 
the  occasion  for  the  meeting  lies  in  the  fact  that  the  natural  resources  of 
our  country  are  in  danger  of  exhaustion  if  we  permit  the  old  wasteful 
methods  of  exploiting  them  longer  to  continue. 

With  the  rise  of  peoples  from  savagery  to  civilization,  and  with  the 
consequent  growth  in  the  extent  and  variety  of  the  needs  of  the  average 
man,  there  comes  a  steadily  increasing  growth  of  the  amount  demanded 
by  this  average  man  from  the  actual  resources  of  the  country.  Yet, 
rather  curiously,  at  the  same  time  the  average  man  is  apt  to  lose  his 
realization  of  this  dependence  upon  nature. 

Savages,  and  very  primitive  peoples  generally,  concern  themselves  only 
with  superficial  natural  resources;  with  those  which  they  obtain  from 
the  actual  surface  of  the  ground.  As  peoples  become  a  little  less  primitive, 
their  industries,  although  in  a  rude  manner,  are  extended  to  resources 
below  the  surface ;  then,  with  what  we  call  civilization  and  the  extension 
of  knowledge,  more  resources  come  into  use,  industries  are  multiplied, 
and  foresight  begins  to  become  a  necessary  and  prominent  factor  in  life. 
Crops  are  cultivated;  animals  are  domesticated;  and  metals  are 
mastered. 

Every  step  of  the  progress  of  mankind  is  marked  by  the  discovery  and 
use  of  natural  resources  previously  unused.  Without  such  progressive 
knowledge  and  utilization  of  natural  resources  population  could  not 
grow,  nor  industries  multiply,  nor  the  hidden  wealth  of  the  earth  be 
developed  for  the  benefit  of  mankind. 

RAPID  PACE  OF  PRESENT-DAY  LIVING 

From  the  first  beginnings  of  civilization,  on  the  banks  of  the  Nile  and 
the  Euphrates,  the  industrial  progress  of  the  world  has  gone  on  slowly, 
with  occasional  setbacks,  but  on  the  whole  steadily,  through  tens  of 
centuries  to  the  present  day.  But  of  late  the  rapidity  of  the  process  has 
increased  at  such  a  rate  that  more  space  has  been  actually  covered 
during  the  century  and  a  quarter  occupied  by  our  national  life  than 
during  the  preceding  six  thousand  years  that  take  us  back  to  the  earliest 
monuments  of  Egypt,  to  the  earliest  cities  of  the  Babylonian  plain. 

When  the  founders  of  this  nation  met  at  Independence  Hall  in  Phila- 
delphia the  conditions  of  commerce  had  not  fundamentally  changed 
from  what  they  were  when  the  Phoenician  keels  first  furrowed  the  lonely 
waters  of  the  Mediterranean.  The  differences  were  those  of  degree,  not 
of  kind,  and  they  were  not  in  all  cases  even  those  of  degree.  Mining  was 
carried  on  fundamentally  as  it  had  been  carried  on  by  the  Pharaohs  in 
the  countries  adjacent  to  the  Red  Sea. 

The  wares  of  the  merchants  of  Boston,  of  Charleston,  like  the  wares 


542  AMERICAN   FEDERAL   GOVERNMENT 

of  the  merchants  of  Nineveh  and  Sidon,  if  they  went  by  water,  were 
carried  by  boats  propelled  by  sails  or  oars ;  if  they  went  by  land,  were 
carried  in  wagons  drawn  by  beasts  of  draught  or  in  packs  on  the  backs 
of  beasts  of  burden.  The  ships  that  crossed  the  high  seas  were  better 
than  the  ships  that  had  once  crossed  the  ^gean,  but  they  were  of  the 
same  type,  after  all  —  they  were  wooden  ships  propelled  by  sails ;  and 
on  land,  the  roads  were  not  as  good  as  the  roads  of  the  Roman  empire, 
while  the  service  of  the  posts  was  probably  inferior. 

In  Washington's  time  anthracite  coal  was  known  only  as  a  useless 
black  stone ;  and  the  great  fields  of  bituminous  coal  were  undiscovered. 
As  steam  was  unknown,  the  use  of  coal  for  power  production  was  un- 
dreamed of.  Water  was  practically  the  only  source  of  power,  save  the 
labor  of  men  and  animals;  and  this  power  was  used  only  in  the  most 
primitive  fashion.  But  a  few  small  iron  deposits  had  been  found  in  this 
country,  and  the  use  of  iron  by  our  countrymen  was  very  small.  Wood 
was  practically  the  only  fuel,  and  what  lumber  was  sawed  was  consumed 
locally,  while  the  forests  were  regarded  chiefly  as  obstructions  to  settle- 
ment and  cultivation. 

Such  was  the  degree  of  progress  to  which  civilized  mankind  had  at- 
tained when  this  nation  began  its  career.  It  is  almost  impossible  for  us 
in  this  day  to  realize  how  little  our  revolutionary  ancestors  knew  of  the 
great  store  of  natural  resources  whose  discovery  and  use  have  been  such 
vital  factors  in  the  growth  and  greatness  of  this  nation,  and  how  little 
they  required  to  take  from  this  store  in  order  to  satisfy  their  needs. 


RESOURCES  AND  GROWTH  OF  THE  UNITED  STATES 

Since  then  our  knowledge  and  use  of  the  resources  of  the  present  ter- 
ritory of  the  United  States  have  increased  a  hundredfold.  Indeed,  the 
growth  of  this  nation  by  leaps  and  bounds  makes  one  of  the  most  strik- 
ing and  important  chapters  in  the  history  of  the  world.  Its  growth  has 
been  due  to  the  rapid  development,  and  alas !  that  it  should  be  said,  to 
the  rapid  destruction,  of  our  natural  resources.  Nature  has  supplied 
to  us  in  the  United  States,  and  still  supplies  to  us,  more  kinds  of  resources 
in  a  more  lavish  degree  than  has  ever  been  the  case  at  any  other  time  or 
with  any  other  people.  Our  position  in  the  world  has  been  attained  by 
the  extent  and  thoroughness  of  the  control  we  have  achieved  over  nature  ; 
but  we  are  more,  and  not  less,  dependent  upon  what  she  furnishes  than 
at  any  previous  time  of  history  since  the  days  of  primitive  man. 

Yet  our  fathers,  though  they  knew  so  little  of  the  resources  of  the 
country,  exercised  a  wise  forethought  in  reference  thereto.  Washington 
clearly  saw  that  the  perpetuity  of  the  States  could  only  be  secured  by 
union,  and  that  the  only  feasible  basis  of  union  was  an  economic  one ; 
in  other  words,  that  it  must  be  based  on  the  development  and  use  of 


LEGISLATIVE   PROBLEMS  543 

their  natural  resources.  Accordingly,  he  helped  to  outline  a  scheme  of 
commercial  development,  and  by  his  influence  on  Interstate  Waterways 
Commission  was  appointed  by  Virginia  and  Maryland. 

It  met  near  where  we  are  now  meeting,  in  Alexandria,  adjourned  to 
Mount  Vernon,  and  took  up  the  consideration  of  interstate  commerce 
by  the  only  means  then  available,  that  of  water.  Further  conferences 
were  arranged,  first  at  Annapolis  and  then  at  Philadelphia.  It  was  in 
Philadelphia  that  the  representatives  of  all  the  States  met  for  what  was 
in  its  original  conception  merely  a  waterways  conference ;  but  when  they 
had  closed  their  deliberations  the  outcome  was  the  Constitution  which 
made  the  States  into  a  nation. 

The  Constitution  of  the  United  States  thus  grew  in  large  part  out  of 
the  necessity  for  united  action  in  the  wise  use  of  one  of  our  natural 
resources.  The  wise  use  of  all  of  our  natural  resources,  which  are  our 
national  resources  as  well,  is  the  great  material  question  of  to-day.  I 
have  asked  you  to  come  together  now  because  the  enormous  consump- 
tion of  these  resources,  and  the  threat  of  imminent  exhaustion  of  some 
of  them,  due  to  reckless  and  wasteful  use,  once  more  calls  for  common 
effort,  common  action. 

Since  the  days  when  the  Constitution  was  adopted,  steam  and  elec- 
tricity have  revolutionized  the  industrial  world.  Nowhere  has  the  revo- 
lution been  so  great  as  in  our  own  country.  The  discovery  and  utiliza- 
tion of  mineral  fuels  and  alloys  have  given  us  the  lead  over  all  other 
nations  in  the  production  of  steel.  The  discovery  and  utilization  of  coal 
and  iron  have  given  us  our  railways,  and  have  led  to  such  industrial 
development  as  has  never  before  been  seen.  The  vast  wealth  of  lumber 
in  our  forests,  the  riches  of  our  soils  and  mines,  the  discovery  of  gold 
mineral  oils,  combined  with  the  efficiency  of  our  transportation,  have 
made  the  conditions  of  our  life  unparalleled  in  comfort  and  convenience. 


PRESENT  DRAIN  ON  OUR  RESOURCES 

The  steadily  increasing  drain  on  these  natural  resources  has  promoted 
to  an  extraordinary  degree  the  complexity  of  our  industrial  and  social 
life.  Moreover,  this  unexampled  development  has  had  a  determining 
effect  upon  the  character  and  opinions  of  our  people.  The  demand  for 
efficiency  in  the  great  task  has  given  us  vigor,  effectiveness,  decision,  and 
power,  and  a  capacity  for  achievement  which  in  its  own  lines  has  never 
yet  been  matched.  So  great  and  so  rapid  has  been  our  material  growth 
that  there  has  been  a  tendency  to  lag  behind  in  spiritual  and  moral 
growth ;  but  that  is  not  the  subject  upon  which  I  speak  to  you  to-day. 

Disregarding  for  the  moment  the  question  of  moral  purpose,  it  is  safe 
to  say  that  the  prosperity  of  our  people  depends  directly  on  the  energy 
and  intelligence  with  which  our  natural  resources  are  used.  It  is  equally 


544  AMERICAN   FEDERAL   GOVERNMENT 

clear  that  these  resources  are  the  final  basis  of  national  power  and  per- 
petuity. Finally,  it  is  ominously  evident  that  these  resources  are  in  the 
course  of  rapid  exhaustion. 

This  nation  began  with  the  belief  that  its  landed  possessions  were 
illimitable  and  capable  of  supporting  all  the  people  who  might  care  to 
make  our  country  their  home ;  but  already  the  limit  of  unsettled  land  is 
in  sight  and,  indeed,  but  little  land  fitted  for  agriculture  now  remains 
unoccupied,  save  what  can  be  reclaimed  by  irrigation  and  drainage.  We 
began  with  an  unapproached  heritage  of  forests ;  more  than  half  of  the 
timber  is  gone.  We  began  with  coal  fields  more  extensive  than  those  of 
any  other  nation,  and  with  iron  ores  regarded  as  inexhaustible,  and  many 
experts  now  declare  that  the  end  of  both  iron  and  coal  is  in  sight. 

The  mere  increase  in  our  consumption  of  coal  during  1907  over  1906 
exceeded  the  total  consumption  in  1876,  the  centennial  year.  The  enor- 
mous stores  of  mineral,  oil,  and  gas  are  largely  gone.  Our  natural  water- 
ways are  not  gone,  but  they  have  been  so  injured  by  neglect,  and  by  the 
division  of  responsibility  and  utter  lack  of  system  in  dealing  with  them, 
that  there  is  less  navigation  on  them  now  than  there  was  fifty  years  ago. 
Finally,  we  began  with  soils  of  unexampled  fertility,  and  we  have  so 
impoverished  them  by  injudicious  use  and  by  failing  to  check  erosion 
that  their  crop-producing  power  is  diminishing  instead  of  increasing. 
In  a  word,  we  have  thoughtlessly,  and  to  a  large  degree  unnecessarily, 
diminished  the  resources  upon  which  not  only  our  prosperity  but  the 
prosperity  of  our  children  must  always  depend. 

We  have  become  great  because  of  the  lavish  use  of  our  resources,  and 
we  have  just  reason  to  be  proud  of  our  growth.  But  the  time  has  come 
to  inquire  seriously  what  will  happen  when  our  forests  are  gone,  when 
the  coal,  the  iron,  the  oil,  and  the  gas  are  exhausted,  when  the  soils  shall 
have  been  still  further  impoverished  and  washed  into  the  streams,  pol- 
luting the  rivers,  denuding  the  fields,  and  obstructing  navigation.  These 
questions  do  not  relate  only  to  the  next  century  or  to  the  next  generation. 
It  is  time  for  us  now  as  a  nation  to  exercise  the  same  reasonable  foresight 
in  dealing  with  our  great  natural  resources  that  would  be  shown  by  any 
prudent  man  in  conserving  and  widely  using  the  property  which  contains 
the  assurance  of  well-being  for  himself  and  his  children. 

Two  CLASSES  OF  RESOURCES 

The  natural  resources  I  have  enumerated  can  be  divided  into  two 
sharply  distinguished  classes  accordingly  as  they  are  or  are  not  capable 
of  renewal.  Mines,  if  used,  must  necessarily  be  exhausted.  The  min- 
erals do  not  and  can  not  renew  themselves.  Therefore,  in  dealing  with  the 
coal,  the  oil,  the  gas,  the  iron,  the  metals  generally,  all  that  we  can  do  is 
to  try  to  see  that  they  are  wisely  used.  The  exhaustion  is  certain  to 
come  in  time. 


LEGISLATIVE  PROBLEMS  545 

The  second  class  of  resources  consists  of  those  which  can  not  only  be 
used  in  such  manner  as  to  leave  them  undiminished  for  our  children, 
but  can  actually  be  improved  by  wise  use.  The  soil,  the  forests,  the 
waterways  come  in  this  category.  In  dealing  with  mineral  resources, 
man  is  able  to  improve  on  nature  only  by  putting  the  resources  to  a 
beneficial  use  which  in  the  end  exhausts  them;  but  in  dealing  with  the 
soil  and  its  products  man  can  improve  on  nature  by  compelling  the 
resources  to  renew  and  even  reconstruct  themselves  in  such  manner  as 
to  serve  increasingly  beneficial  uses  — -  while  the  living  waters  can  be  so 
controlled  as  to  multiply  their  benefits. 

Neither  the  primitive  man  nor  the  pioneer  was  aware  of  any  duty  to 
posterity  in  dealing  with  the  renewable  resources.  When  the  American 
settler  felled  the  forests,  he  felt  that  there  was  plenty  of  forest  left  for 
the  sons  who  came  after  him.  When  he  exhausted  the  soil  of  his  farm 
he  felt  that  his  son  could  go  West,  and  take  up  another.  So  it  was  with 
his  immediate  successors.  When  the  soil-wash  from  the  farmer's  fields 
choked  the  neighboring  river  he  thought  only  of  using  the  railway  rather 
than  boats  for  moving  his  produce  and  supplies. 

Now  all  this  is  changed.  On  the  average  the  son  of  the  farmer  of  to- 
day must  make  his  living  on  his  father's  farm.  There  is  no  difficulty  in 
doing  this  if  the  father  will  exercise  wisdom.  No  wise  use  of  a  farm 
exhausts  its  fertility.  So  with  the  forests.  We  are  over  the  verge  of  a 
timber  famine  in  this  country,  and  it  is  unpardonable  for  the  nation  or 
the  States  to  permit  any  further  cutting  of  our  timber,  save  in  accordance 
with  a  system  which  will  provide  that  the  next  generation  shall  see  the 
timber  increased  instead  of  diminished.  Moreover,  we  can  add  enor- 
mous tracts  of  the  most  valuable  possible  agricultural  land  to  the  na- 
tional domain  by  irrigation  in  the  arid  and  semi-arid  regions  and  by 
drainage  of  great  tracts  of  swamp  land  in  the  humid  regions.  We  can 
enormously  increase  our  transportation  facilities  by  the  canalization 
of  our  rivers  so  as  to  complete  a  great  system  of  waterways  on  the  Pacific, 
Atlantic,  and  Gulf  coasts,  and  in  the  Mississippi  valley,  from  the  Great 
Plains  to  the  Alleghenies,  and  from  the  northern  lakes  to  the  mouth  of 
the  mighty  Father  of  Waters.  But  all  these  various  uses  of  our  natural 
resources  are  so  clearly  connected  that  they  should  be  coordinated,  and 
should  be  treated  as  part  of  one  coherent  plan  and  not  in  haphazard 
and  piecemeal  fashion. 

It  is  largely  because  of  this  that  I  appointed  the  Waterways  Commis- 
sion last  year,  and  that  I  have  sought  to  perpetuate  its  work.  I  wish 
to  take  this  opportunity  to  express  in  heartiest  fashion  my  acknowl- 
edgment to  all  the  members  of  the  Commission.  At  great  personal 
sacrifice  of  time  and  effort  they  have  rendered  a  service  to  the  public 
for  which  we  cannot  be  too  grateful.  Especial  credit  is  due  to  the  initi- 
ative, the  energy,  the  devotion  to  duty,  and  the  far-sightedness  of  Gifford 
Pinchot,  to  whom  we  owe  so  much  of  the  progress  we  have  already 

35 


546  AMERICAN   FEDERAL   GOVERNMENT 

made  in  handling  this  matter  0f  the  coordination  and  conservation  of 
natural  resources.  If  it  had  not  been  for  him  this  convention  neither 
would  nor  could  have  been  called. 


DUTY  OF  THE  NATION 

We  are  coming  to  recognize  as  never  before  the  right  of  the  nation  to 
guard  its  own  future  in  the  essential  matter  of  natural  resources.  In  the 
past  we  have  admitted  the  right  of  the  individual  to  injure  the  future  of 
the  republic  for  his  own  present  profit.  The  time  has  come  for  a  change. 
As  a  people,  we  have  the  right  and  the  duty,  second  to  none  other  but 
the  right  and  duty  of  obeying  the  moral  law,  of  requiring  and  doing 
justice,  to  protect  ourselves  and  our  children  against  the  wasteful  devel- 
opment of  our  natural  resources,  whether  that  waste  is  caused  by  the 
actual  destruction  of  such  resources  or  by  making  them  impossible  of 
development  hereafter. 

Any  right-thinking  father  earnestly  desires  and  strives  to  leave  his  son 
both  an  untarnished  name  and  a  reasonable  equipment  for  the  struggle 
of  life.  So  this  nation,  as  a  whole,  should  earnestly  desire  and  strive  to 
leave  to  the  next  generation  the  national  honor  unstained  and  the  national 
resources  unexhausted.  There  are  signs  that  both  the  nation  and  the 
States  are  waking  to  a  realization  of  this  great  truth.  On  March  10, 
1908,  the  Supreme  Court  of  Maine  rendered  an  exceedingly  important 
judicial  decision.  This  opinion  was  rendered  in  response  to  questions 
as  to  the  right  of  the  Legislature  to  restrict  the  cutting  of  trees  on  private 
land  for  the  prevention  of  droughts  and  floods,  the  preservation  of  the 
natural  water  supply,  and  the  prevention  of  the  erosion  of  such  lands, 
and  the  consequent  filling  up  of  rivers,  ponds,  and  lakes.  The  forests 
and  water  power  of  Maine  constitute  the  larger  part  of  her  wealth  and 
form  the  basis  of  her  industrial  life,  and  the  question  submitted  by  the 
Maine  Senate  to  the  Supreme  Court  and  the  answer  of  {he  Supreme 
Court  alike  bear  testimony  to  the  wisdom  of  the  people  of  Maine,  and 
clearly  define  a  policy  of  conservation  of  natural  resources,  the  adoption 
of  which  is  of  vital  importance,  not  merely  to  Maine,  but  to  the  whole 
country. 

POLICY  OF  PRESERVATION 

Such  a  policy  will  preserve  soil,  forests,  water  power  as  a  heritage  for 
the  children  and  the  children's  children  of  the  men  and  women  of  this 
generation ;  for  any  enactment  that  provides  for  the  wise  utilization  of 
the  forest,  whether  in  public  or  private  ownership,  and  for  the  conserva- 
tion of  the  water  resources  of  the  country,  must  necessarily  be  legislation 
that  will  promote  both  private  and  public  welfare ;  for  flood  prevention, 


LEGISLATIVE   PROBLEMS  547 

water-power  development,  preservation  of  the  soil,  and  improvement  of 
navigable  rivers  are  all  promoted  by  such  a  policy  of  forest  conservation. 

The  opinion  of  the  Maine  supreme  bench  sets  forth  unequivocally  the 
principle  that  the  property  rights  of  the  individual  are  subordinate  to 
the  rights  of  the  community,  and  especially  that  the  waste  of  wild  timber 
land  derived  originally  from  the  State,  involving  as  it  would  the  im- 
poverishment of  the  State  and  its  people,  and  thereby  defeating  one 
great  purpose  of  government,  may  properly  be  prevented  by  State 
restrictions. 

The  court  says  there  are  two  reasons  why  the  right  of  the  public  to 
control  and  limit  the  use  of  private  property  is  peculiarly  applicable  to 
property  in  land:  " First,  such  property  is  not  the  result  of  productive 
labor,  but  is  derived  solely  from  the  State  itself,  the  original  owner; 
second,  the  amount  of  land  being  incapable  of  increase,  if  the  owners 
of  large  tracts  can  waste  them  at  will  without  State  restriction,  the  State 
and  its  people  may  be  helplessly  impoverished,  and  one  great  purpose 
of  government  defeated.  .  .  .  We  do  not  think  the  proposed  legislation 
would  operate  to  'take'  private  property  within  the  inhibition  of  the 
Constitution.  While  it  might  restrict  the  owner  of  wild  and  unculti- 
vated lands  in  his  use  of  them,  might  delay  his  taking  some  of  the  prod- 
uct, might  delay  his  anticipated  profits  and  even  thereby  might  cause 
him  some  loss  of  profit,  it  would  nevertheless  leave  him  his  lands  their 
product  and  increase,  untouched,  and  without  diminution  of  title,  estate, 
or  quantity.  He  would  still  have  large  measure  of  control  and  large 
opportunity  to  realize  values.  He  might  suffer  delay  but  not  privation. 
.  .  .  The  proposed  legislation  .  .  .  would  be  within  the  legislative  power 
and  would  not  operate  as  a  taking  of  private  property  for  which  com- 
pensation must  be  made." 

The  Court  of  Errors  and  Appeals  of  New  Jersey  has  adopted  a 
similar  view,  which  has  recently  been  sustained  by  the  Supreme  Court 
of  the  United  States.  In  delivering  the  opinion  of  the  court  on  April  6, 
1908,  Mr.  Justice  Holmes  said: 

"The  State  as  quasi-sovereign  and  representative  of  the  interests  of  the 
public  has  a  standing  in  court  to  protect  the  atmosphere,  the  water, 
and  the  forests  within  its  territory,  irrespective  of  the  assent  or  dissent 
of  the  private  owners  of  the  land  most  immediately  concerned.  ...  It 
appears  to  us  that  few  public  interests  are  more  obvious,  indisputable, 
and  independent  of  particular  theory  than  the  interest  of  the  public  of 
a^State  to  maintain  the  rivers  that  are  wholly  within  it  substantially  un- 
diminished,  except  by  such  drafts  upon  them  as  the  guardian  of  the 
public  welfare  may  permit  for  the  purpose  of  turning  them  to  a  more 
perfect  use.  This  public  interest  is  omnipresent  wherever  there  is  a 

State,  and  grows  more  pressing  as  population  grows We  are  of 

opinion,  further,  that  the  constitutional  power  of  the  State  to  insist 
that  its  natural  advantages  shall  remain  unimpaired  by  its  citizens  is 


548  AMERICAN   FEDERAL   GOVERNMENT 

not  dependent  upon  any  nice  estimate  of  the  extent  of  present  use  or 
speculation  as  to  future  needs.  The  legal  conception  of  the  necessary 
is  apt  to  be  confined  to  somewhat  rudimentary  wants,  and  there  are 
benefits  from  a  great  river  that  might  escape-  a  lawyer's  view.  But  the 
State  is  not  required  to  submit  even  to  an  aesthetic  analysis.  Any  analy- 
sis may  be  inadequate.  It  finds  itself  in  possession  of  what  all  admit 
to  be  a  great  public  good,  and  what  it  has  it  may  keep  and  give  no  one  a 
reason  for  its  will." 

These  decisions  reach  the  root  of  the  idea  of  conservation  of  our 
resources  in  the  interests  of  our  people. 


FROM  THE   MESSAGE   OF   PRESIDENT   ROOSEVELT, 
DECEMBER   3,    1907 

Inland  Waterways.  The  conservation  of  our  natural  resources  and 
their  proper  use  constitute  the  fundamental  problem  which  underlies 
almost  every  other  problem  of  our  National  life.  We  must  maintain  for 
our  civilization  the  adequate  material  basis  without  which  that  civiliza- 
tion cannot  exist.  We  must  show  foresight,  we  must  look  ahead.  As  a 
nation  we  not  only  enjoy  a  wonderful  measure  of  present  prosperity 
but  if  this  prosperity  is  used  aright  it  is  an  earnest  of  future  success 
such  as  no  other  nation  will  have.  The  reward  of  foresight  for  this 
Nation  is  great  and  easily  foretold.  But  there  must  be  the  look  ahead, 
there  must  be  a  realization  of  the  fact  that  to  waste,  to  destroy,  our 
natural  resources,  to  skin  and  exhaust  the  land  instead  of  using  it  so  as 
to  increase  its  usefulness,  will  result  in  undermining  in  the  days  of  our 
children  the  very  prosperity  which  we  ought  by  right  to  hand  down 
to  them  amplified  and  developed.  For  the  last  few  years,  through  sev- 
eral agencies,  the  Government  has  been  endeavoring  to  get  our  people 
to  look  ahead  and  to  substitute  a  planned  and  orderly  development  of 
our  resources  in  place  of  a  haphazard  striving  for  immediate  profit. 
Our  great  river  systems  should  be  developed  as  national  water  high- 
ways ;  the  Mississippi,  with  its  tributaries,  standing  first  in  importance, 
and  the  Columbia  second,  although  there  are  many  others  of  impor- 
tance on  the  Pacific,  the  Atlantic,  and  the  Gulf  slopes.  The  National 
Government  should  undertake  this  work,  and  I  hope  a  beginning  will 
be  made  in  the  present  Congress ;  and  the  greatest  of  all  our  rivers,  the 
Mississippi,  should  receive  especial  attention.  From  the  Great  Lakes  to 
the  mouth  of  the  Mississippi  there  should  be  a  deep  waterway,  with 
deep  waterways  leading  from  it  to  the  East  and  the  West.  Such  a 
waterway  would  practically  mean  the  extension  of  our  coast  line  into 
the  very  heart  of  our  country.  It  would  be  of  incalculable  benefit  to 
our  people.  If  begun  at  once  it  can  be  carried  through  in  time  appreci- 
ably to  relieve  the  congestion  of  our  great  freight-carrying  lines  of  rail- 


LEGISLATIVE   PROBLEMS  549 

roads.  The  work  should  be  systematically  and  continuously  carried 
forward  in  accordance  with  some  well-conceived  plan.  The  main 
streams  should  be  improved  to  the  highest  point  of  efficiency  before  the 
improvement  of  the  branches  is  attempted ;  and  the  work  should  be  kept 
free  from  every  taint  of  recklessness  or  jobbery.  The  inland  waterways 
which  lie  just  back  of  the  whole  eastern  and  southern  coasts  should 
likewise  be  developed.  Moreover,  the  development  of  our  waterways 
involves  many  other  important  water  problems,  all  of  which  should  be 
considered  as  part  of  the  same  general  scheme.  The  Government  dams 
should  be  used  to  produce  hundreds  of  thousands  of  horsepower  as  an 
incident  to  improving  navigation;  for  the  annual  value  of  the  unused 
water  power  of  the  United  States  perhaps  exceeds  the  annual  value  of 
the  products  of  all  our  mines.  As  an  incident  to  creating  the  deep 
waterway  down  the  Mississippi,  the  Government  should  build  along  its 
whole  lower  length  levees  which  taken  together  with  the  control  of  the 
headwaters,  will  at  once  and  forever  put  a  complete  stop  to  all  threat 
of  floods  in  the  immensely  fertile  Delta  region.  The  territory  lying 
adjacent  to  the  Mississippi  along  its  lower  course  will  thereby  become 
one  of  the  most  prosperous  and  populous,  as  it  already  is  one  of  the  most 
fertile,  farming  regions  in  all  the  world.  I  have  appointed  an  Inland 
Waterways  Commission  to  study  and  outline  a  comprehensive  scheme 
of  development  along  all  the  lines  indicated.  Later  I  shall  lay  its  report 
before  the  Congress. 

Reclamation  Work.  Irrigation  should  be  far  more  extensively  de- 
veloped than  at  present,  not  only  in  the  States  of  the  Great  Plains  and 
the  Rocky  Mountains,  but  in  many  others,  as,  for  instance,  in  large 
portions  of  the  South  Atlantic  and  Gulf  State^,  where  it  should  go 
hand  in  hand  with  the  reclamation  of  swamp  land.  The  Federal 
Government  should  seriously  devote  itself  to  this  task,  realizing  that  util- 
ization of  waterways  and  water-power,  forestry,  irrigation,  and  the  recla- 
mation of  lands  threatened  with  overflow,  are  all  interdependent  parts 
of  the  same  problem.  The  work  of  the  Reclamation  Service  in  devel- 
oping the  larger  opportunities  of  the  western  half  of  our  country  for 
irrigation  is  more  important  than  almost  any  other  movement.  The 
constant  purpose  of  the  Government  in  connection  with  the  Reclama- 
tion Service  has  been  to  use  the  water  resources  of  the  public  lands  for 
the  ultimate  greatest  good  of  the  greatest  number;  in  other  words,  to 
put  upon  the  land  permanent  home-makers,  to  use  and  develop  it  for 
themselves  and  for  their  children  and  children's  children.  There  has 
been,  of  course,  opposition  to  this  work;  opposition  from  some  inter- 
ested men  who  desire  to  exhaust  the  land  for  their  own  immediate 
profit  without  regard  to  the  welfare  of  the  next  generation,  and  opposi- 
tion from  honest  and  well-meaning  men  who  did  not  fully  understand 
the  subject  or  who  did  not  look  far  enough  ahead.  This  opposition  is, 
I  think,  dying  away,  and  our  people  are  understanding  that  it  would 


550  AMERICAN  FEDERAL   GOVERNMENT 

be  utterly  wrong  to  allow  a  few  individuals  to  exhaust  for  their  own 
temporary  personal  profit  the  resources  which  ought  to  be  developed 
through  use  so  as  to  be  conserved  for  the  permanent  common  advan- 
tage of  the  people  as  a  whole. 

Public  Lands.  The  effort  of  the  Government  to  deal  with  the  public 
land  has  been  based  upon  the  same  principle  as  that  of  the  Reclamation 
Service.  The  land  law  system  which  was  designed  to  meet  the  needs 
of  the  fertile  and  well-watered  regions  of  the  Middle  West  has  largely 
broken  down  when  applied  to  the  dryer  regions  of  the  Great  Plains, 
the  mountains  and  much  of  the  Pacific  slope,  where  a  farm  of  160 
acres  is  inadequate  for  self-support.  In  these  regions  the  system  lent 
itself  to  fraud,  and  much  land  passed  out  of  the  hands  of  the  Govern- 
ment without  passing  into  the  hands  of  the  home-maker.  The  Depart- 
ment of  the  Interior  and  the  Department  of  Justice  joined  in  prosecuting 
the  offenders  against  the  law ;  and  they  have  accomplished  much,  while 
where  the  administration  of  the  law  has  been  defective  it  has  been 
changed.  But  the  laws  themselves  are  defective.  Three  years  ago  a 
public  lands  commission  was  appointed  to  scrutinize  the  law,  and 
defects,  and  recommended  a  remedy.  Their  examination  specifically 
showed  the  existence  of  great  fraud  upon  the  public  domain,  and  their 
recommendations  for  changes  in  the  law  were  made  with  the  design 
of  conserving  the  natural  resources  of  every  part  of  the  public  lands 
by  putting  it  to  its  best  use.  Especial  attention  was  called  to  the  pre- 
vention of  settlement  by  the  passage  of  great  areas  of  public  land  into 
the  hands  of  a  few  men,  and  to  the  enormous  waste  caused  by  unre- 
stricted grazing  upon  the  open  range.  The  recommendations  of  the 
Public  Lands  Commission  are  sound,  for  they  are  especially  in  the 
interest  of  the  actual  home-maker;  and  where  the  small  home-maker 
can  not  at  present  utilize  the  land  they  provide  that  the  Government 
shall  keep  control  of  it  so  that  it  may  not  be  monopolized  by  a  few  men. 
The  Congress  has  not  yet  acted  upon  these  recommendations;  but 
they  are  so  just  and  proper,  so  essential  to  our  National  welfare,  that  I 
feel  confident,  if  the  Congress  will  take  time  to  consider  them,  that  they 
will  ultimately  be  adopted. 

Some  such  legislation  as  that  proposed  is  essential  in  order  to  pre- 
serve the  great  stretches  of  public  grazing  land  which  are  unfit  for  cul- 
tivation under  present  methods  and  are  valuable  only  for  the  forage 
which  they  supply.  These  stretches  amount  in  all  to  some  300,000,000 
acres,  and  are  open  to  the  free  grazing  of  cattle,  sheep,  horses  and  goats, 
without  restriction.  Such  a  system,  or  rather  such  lack  of  system, 
means  that  the  range  is  not  so  much  used  as  wasted  by  abuse.  As  the 
West  settles  the  range  becomes  more  and  more  over-grazed.  Much  of 
it  can  not  be  used  to  advantage  unless  it  is  fenced,  for  fencing  is  the  only 
way  by  which  to  keep  in  check  the  owners  of  nomad  flocks  which  roam 
hither  and  thither,  utterly  destroying  the  pastures  and  leaving  a  waste 


LEGISLATIVE  PROBLEMS  551 

behind,  so  that  their  presence  is  incompatible  with  the  presence  of 
home-makers.  The  existing  fences  are  all  illegal.  Some  of  them  rep- 
resent the  improper  exclusion  of  actual  settlers,  actual  home-makers, 
from  territory  which  is  usurped  by  great  cattle  companies.  Some  of 
them  represent  what  is  in  itself  a  proper  effort  to  use  the  range  for  those 
upon  the  land,  and  to  prevent  its  use  by  nomadic  outsiders.  All  these 
fences,  those  that  are  hurtful  and  those  that  are  beneficial,  are  alike 
illegal  and  must  come  down.  But  it  is  an  outrage  that  the  law  should 
necessitate  such  action  on  the  part  of  the  Administration.  The  unlaw- 
ful fencing  of  public  lands  for  private  grazing  must  be  stopped,  but 
the  necessity  which  occasioned  it  must  be  provided  for.  The  Federal 
Government  should  have  control  of  the  range,  whether  by  permit  or 
lease,  as  local  necessities  may  determine.  Such  control  could  secure 
the  great  benefit  of  legitimate  fencing,  while  at  the  same  time  securing 
and  promoting  the  settlement  of  the  country.  In  some  places  it  may 
be  that  the  tracts  of  range  adjacent  to  the  homesteads  of  actual  settlers 
should  be  allotted  to  them  severally  or  in  common  for  the  summer 
grazing  of  their  stock.  Elsewhere  it  may  be  that  a  lease  system  would 
serve  the  purpose;  the  leases  to  be  temporary  and  subject  to  the  rights 
of  settlement,  and  the  amount  charged  being  large  enough  merely  to 
permit  of  the  efficient  and  beneficial  control  of  the  range  by  the  Gov- 
ernment, and  of  the  payment  to  the  county  of  the  equivalent  of  what  it 
would  otherwise  receive  in  taxes.  The  destruction  of  the  public  range 
will  continue  until  some  laws  such  as  these  are  enacted.  Fully  to  pre- 
vent the  fraud  in  the  public  lands  which,  through  the  joint  action  of 
the  Interior  Department  and  the  Department  of  Justice,  we  have  been 
endeavoring  to  prevent,  there  must  be  further  legislation,  and  especially 
a  sufficient  appropriation  to  permit  the  Department  of  the  Interior  to 
examine  certain  classes  of  entries  on  the  ground  before  they  pass  into 
private  ownership.  The  Government  should  part  with  its  title  only  to 
the  actual  home-maker,  not  to  the  profit-maker  who  does  not  care  to 
make  a  home.  Our  prime  object  is  to  secure  the  rights  and  guard  the 
interests  of  the  small  ranchman,  the  man  who  plows  and  pitches  hay 
for  himself.  It  is  this  small  ranchman,  this  actual  settler  and  home- 
maker,  who  in  the  long  run  is  most  hurt  by  permitting  thefts  of  the 
public  land  in  whatever  form. 

Forests.  Optimism  is  a  good  characteristic,  but  if  carried  to  an  excess 
it  becomes  foolishness.  We  are  prone  to  speak  of  the  resources  of  this 
country  as  inexhaustible;  this  is  not  so.  The  mineral  wealth  of  the 
country,  the  coal,  iron,  oil,  gas,  and  the  like,  does  not  reproduce  itself, 
and  therefore  is  certain  to  be  exhausted  ultimately;  and  wastefulness 
in  dealing  with  it  to-day  means  that  our  descendants  will  feel  the  ex- 
haustion a  generation  or  two  before  they  otherwise  would.  But  there 
are  certain  other  forms  of  waste  which  could  be  entirely  stopped  —  the 
waste  of  soil  by  washing,  for  instance,  which  is  among  the  most  dangerous 


552  AMERICAN  FEDERAL   GOVERNMENT 

of  all  wastes  now  in  progress  in  the  United  States,  is  easily  prevent- 
able, so  that  this  present  enormous  loss  of  fertility  is  entirely  unneces- 
sary. The  preservation  or  replacement  of  the  forests  is  one  of  the  most 
important  means  of  preventing  this  loss.  We  have  made  a  beginning 
in  forest  preservation,  but  it  is  only  a  beginning.  At  present  lumbering 
is  the  fourth  greatest  industry  in  the  United  States;  and  yet,  so  rapid 
has  been  the  rate  of  exhaustion  of  timber  in  the  United  States  in  the 
past,  and  so  rapidly  is  the  remainder  being  exhausted,  that  the  coun- 
try is  unquestionably  on  the  verge  of  a  timber  famine  which  will  be  felt 
in  every  household  in  the  land.  There  has  already  been  a  rise  in  the 
price  of  lumber,  but  there  is  certain  to  be  a  more  rapid  and  heavier  rise 
in  the  future.  The  present  annual  consumption  of  lumber  is  certainly 
three  times  as  great  as  the  annual  growth ;  and  if  the  consumption  and 
growth  continue  unchanged,  practically  all  our  lumber  will  be  exhausted 
in  another  generation,  while  long  before  the  limit  to  complete  exhaus- 
tion is  reached  the  growing  scarcity  will  make  itself  felt  in  many  blight- 
ing w,ays  upon  our  National  welfare.  About  20  per  cent  of  our  forested 
territory  is  now  reserved  in  National  forests;  but  these  do  not  include 
the  most  valuable  timber  lands,  and  in  any  event  the  proportion  is  too 
small  to  expect  that  the  reserves  can  accomplish  more  than  a  mitigation 
of  the  trouble  which  is  ahead  for  the  nation.  Far  more  drastic  action  is 
needed.  Forests  can  he  lumbered  so  as  to  give  to  the  public  the  full 
use  of  their  mercantile  timber  without  the  slightest  detriment  to  the 
forest,  any  more  than  it  is  a  detriment  to  a  farm  to  furnish  a  harvest; 
so  that  there  is  no  parallel  between  forests  and  mines,  which  can  only 
be  completely  used  by  exhaustion.  But  forests,  if  used  as  all  our  for- 
ests have  been  used  in  the  past  and  as  most  of  them  are  still  used,  will 
be  either  wholly  destroyed,  or  so  damaged  that  many  decades  have  to 
pass  before  effective  use  can  be  made  of  them  again.  All  these  facts 
are  so  obvious  that  it  is  extraordinary  that  it  should  be  necessary  to 
repeat  them.  Every  business  man  in  the  land,  every  writer  in  the 
newspapers,  every  man  or  woman  of  an  ordinary  education,  ought  to 
be  able  to  see  that  immense  quantities  of  timber  are  used  in  the  country, 
that  the  forests  which  supply  this  timber  are  rapidly  being  exhausted, 
and  that,  if  no  change  takes  place,  exhaustion  will  come  comparatively 
soon,  and  that  the  effects  of  it  will  be  felt  severely  in  the  every-day  life 
of  our  people.  Surely,  when  these  facts  are  so  obvious,  there  should  be 
no  delay  in  taking  preventive  measures.  Yet  we  seem  as  a  nation  to  be 
willing  to  proceed  in  this  matter  with  happy-go-lucky  indifference  even 
to  the  immediate  future.  It  is  this  attitude  which  permits  the  self- 
interest  of  a  very  few  persons  to  weigh  for  more  than  the  ultimate  interest 
of  all  our  people.  There  are  persons  who  find  it  to  their  immense  pecu- 
niary benefit  to  destroy  the  forests  by  lumbering.  They  are  to  be  blamed 
for  thus  sacrificing  the  future  of  the  Nation  as  a  whole  to  their  own 
self-interest  of  the  moment;  but  heavier  blame  attaches  to  the  people 


LEGISLATIVE  PROBLEMS  553 

at  large  for  permitting  such  action,  whether  in  the  White  Mountains, 
in  the  southern  Alleghenies,  or  in  the  Rockies  and  Sierras.  A  big 
lumbering  company,  impatient  for  immediate  returns  and  not  caring 
to  look  far  enough  ahead,  will  often  deliberately  destroy  all  the  good 
timber  in  a  region,  hoping  afterwards  to  move  on  to  some  new  country. 
The  shiftless  man  of  small  means,  who  does  not  care  to  become  an 
actual  home-maker  but  would  like  immediate  profit,  will  find  it  to  his 
advantage  to  take  up  timber  land  simply  to  turn  it  over  to  such  a  big 
company,  and  leave  it  valueless  for  future  settlers.  A  big  mine  owner 
anxious  only  to  develop  his  mine  at  the  moment,  will  care  only  to  cut  all 
the  timber  that  he  wishes  without  regard  to  the  future  —  probably  not 
looking  ahead  to  the  condition  of  the  country  when  the  forests  are  ex- 
hausted, any  more  than  he  does  to  the  condition  when  the  mine  is 
worked  out.  I  do  not  blame  these  men  nearly  as  much  as  I  blame  the 
supine  public  opinion,  the  indifferent  public  opinion,  which  permits  their 
action  to  go  unchecked.  Of  course  to  check  the  waste  of  timber  means 
that  there  must  be  on  the  part  of  the  public  the  acceptance  of  a  tempo- 
rary restriction  in  the  lavish  use  of  the  timber,  in  order  to  prevent  the 
total  loss  of  this  use  in  the  future.  There  are  plenty  of  men  in  public 
and  private  life  who  actually  advocate  the  continuance  of  the  present 
system  of  unchecked  and  wasteful  extravagance,  using  as  an  argument 
the  fact  that  to  check  it  will  of  course  mean  interference  with  the  ease 
and  comfort  of  certain  people  who  now  get  lumber  at  less  cost  than  they 
ought  to  pay,  at  the  expense  of  the  future  generations.  Some  of  these 
persons  actually  demand  that  the  present  forest  reserves  be  thrown 
open  to  destruction,  because,  forsooth,  they  think  that  thereby  the  price 
of  lumber  could  be  put  down  again  for  two  or  three  or  more  years. 
Their  attitude  is  precisely  like  that  of  an  agitator  protesting  against  the 
outlay  of  money  by  farmers  on  manure  and  in  taking  care  of  their  farms 
generally.  Undoubtedly,  if  the  average  farmer  were  content  absolutely 
to  ruin  his  farm,  he  could  for  two  or  three  years  avoid  spending  any 
money  on  it,  and  yet  make  a  good  deal  of  money  out  of  it.  But  only  a 
savage  would,  in  his  private  affairs,  show  such  reckless  disregard  of  the 
future ;  yet  it  is  precisely  this  reckless  disregard  of  the  future  which  the 
opponents  of  the  forestry  system  are  now  endeavoring  to  get  the  people 
of  the  United  States  to  show.  The  only  trouble  with  the  movement  for 
the  reservation  of  our  forests  is  that  it  has  not  gone  nearly  far  enough, 
and  was  not  begun  soon  enough.  It  is  a  most  fortunate  thing,  however, 
that  we  began  it  when  we  did.  We  should  acquire  in  the  Appalachian 
and  White  Mountain  regions  all  the  forest  lands  that  it  is  possible  to 
acquire  for  the  use  of  the  Nation.  These  lands,  because  they  form  a 
National  asset,  are  as  emphatically  national  as  the  rivers  which  they 
feed,  and  which  flow  through  so  many  States  before  they  reach  the 
ocean. 

There  should  be  no  tariff  on  any  forest  product  grown  in  this  coun- 


554  AMERICAN  FEDERAL   GOVERNMENT 

try;  and,  in  especial,  there  should  be  no  tariff  on  wood  pulp;  due 
notice  of  the  change  being  of  course  given  to  those  engaged  in  the  busi- 
ness so  as  to  enable  them  to  adjust  themselves  to  the  new  conditions. 
The  repeal  of  the  duty  on  wood  pulp  should,  if  possible,  be  accompanied 
by  an  agreement  with  Canada  that  there  shall  be  no  export  duty  on 
Canadian  pulp  wood. 

Mineral  Lands.  In  the  eastern  United  States  the  mineral  fuels  have 
already  passed  into  the  hands  of  large  private  owners,  and  those  of  the 
West  are  rapidly  following.  It  is  obvious  that  these  fuels  should  be 
conserved  and  not  wasted,  and  it  would  be  well  to  protect  the  people 
against  unjust  and  extortionate  prices,  so  far  as  that  can  still  be  done. 
What  has  been  accomplished  in  the  great  oil  fields  of  the  Indian  Terri- 
tory by  the  action  of  the  Administration,  offers  a  striking  example  of 
the  good  results  of  such  a  policy.  In  my  judgment  the  Government 
should  have  the  right  to  keep  the  fee  of  the  coal,  oil,  and  gas  fields  in 
its  own  possession  and  to  lease  the  rights  to  develop  them  under  proper 
regulations ;  or  else,  if  the  Congress  will  not  adopt  this  method,  the  coal 
deposits  should  be  sold  under  limitations,  to  conserve  them  as  public 
utilities,  the  right  to  mine  coal  being  separated  from  the  title  to  the  soil. 
The  regulations  should  permit  coal  lands  to  be  worked  in  sufficient 
quantity  by  the  several  corporations.  The  present  limitations  have 
been  absurd,  excessive,  and  serve  no  useful  purpose,  and  often  render  it 
necessary  that  there  should  be  either  fraud  or  else  abandonment  of  the 
work  of  getting  out  the  coal. 


SENATE   DEBATE   ON   FOREST   RESERVATIONS1 

MR.  SPOONER.  Now,  all  I  started  out  to  say  was  that  the  policy  of 
the  Government  has  been,  so  far  as  the  forestry  laws  are  concerned,  ex- 
ercising the  option  which  it  possesses  to  hold  its  timber  lands  in  order  to 
conserve  the  timber  supply  of  the  States  and  of  the  country  rather  than 
to  open  it,  except  in  a  qualified  way,  to  homestead  settlement.  It  would 
be  opening  it,  as  I  said  a  few  moments  ago,  to  corporations  cutting, 
manufacturing,  and  selling  lumber,  enabling  them  to  save  their  own 
timber  supply  and  obtain  that  for  present  uses  from  homesteaders. 
The  average  homesteader  can  not  carry  on  to  any  large  extent  lumbering 
operations.  They  clear  a  little  piece  for  agricultural  purposes,  for  the 
erection  of  a  cabin.  They  fence  a  little  space,  but  for  many,  many  years 
they  do  not  go  beyond  that.  It  is  a  work  of  years,  and  many  years 
ordinarily,  to  clear  a  forest  farm,  and,  as  the  Senator  from  Utah  [Mr. 
Smoot]  says  to  me,  half  of  it  is  lost. 

Mr.  President,  that  is  not  all.  The  Congress  had  another  thing  in 
view  in  establishing  the  forest  reserves,  and  that  is  of  the  utmost  con- 

1  Congr.  Record,  Feb.  19-23,  1907. 


LEGISLATIVE  PROBLEMS  555 

sequence  to  the  people  of  the  West,  of  some  consequence  to  those  States 
whose  forests  have  been  denuded  or  destroyed,  and  that  was  to  conserve 
the  water  supply.  That  is  of  peculiar  consequence  to  all  the  people 
living  in  the  semiarid  region  of  the  country.  That  plays  an  important 
part  in  carrying  to  successful  consummation  the  splendid  irrigation 
scheme  which  is  upon  the  statute  book  and  is  now  being  wrought  out. 
The  water  supply  in  the  far  West  and  its  conservation  is  of  the  utmost 
consequence.  Congress  had  a  wise  purpose  expressed  in  the  act  for  the 
establishment  of  these  reserves.  The  act  of  June  i,  1897,  provides  — 

No  public  forest  reservation  shall  be  established,  except  to  improve  and  pro- 
tect the  forest  within  the  reservation,  or  for  the  purpose  of  securing  favorable 
conditions  of  water  flows,  and  to  furnish  a  continuous  supply  of  timber  for  the 
use  and  necessities  of  citizens  of  the  United  States. 

Without  this  forest-reserve  policy,  leaving  the  land  open  to  settlement, 
except  upon  the  mountain  tops,  where  no  man  could  live,  it  would  not  be 
twenty  years  until  the  State  of  Idaho  would  have  supplied  the  East  and 
the  Middle  States  with  her  timber,  and  her  own  forests  would,  in  the 
main,  be  gone. 

Mr.  HEYBURN.    Will  the  Senator  permit  me  to  suggest  something  ? 

Mr.  SPOONER.     Certainly. 

Mr.  HEYBURN.  I  looked  at  the  question  from  that  standpoint  four 
years  ago  and  three  years  ago.  It  so  happened  at  the  last  session  of 
Congress  that  I  was  ill  and  unable  to  be  present.  I  had  therefore  kept 
in  the  law  an  exception  in  the  interest  of  Idaho,  providing  that  lumber 
should  not  be  shipped  by  the  Government  out  of  the  State  of  Idaho,  but 
during  my  absence  last  winter  that  provision  was  stricken  out.  I  am 
going  to  ask  that  it  be  inserted  this  year. 

Mr.  SPOONER.    Why  should  it  not  be  shipped  out  of  the  State  of  Idaho  ? 

Mr.  HEYBURN.  Why  should  the  Government  ship  it  out  of  Idaho  if 
the  forests  are  being  conserved  for  the  future  uses  of  the  people  of 
Idaho? 

Mr.  SPOONER.  The  conservation  of  the  forests  requires  that  some 
timber  shall  be  cut. 

Mr.  HEYBURN.    But  let  it  be  sold  in  Idaho. 

Mr.  SPOONER.  Dead  and  down  timber  must  be  removed.  A  hurri- 
cane sweeps  through  the  forest.  The  timber  affected  should  be  cut 
away,  and  for  two  reasons.  It  will  otherwise  be  destroyed  by  worms, 
and  worse  than  that,  it  invites  a  fire  which  may  devastate  the  whole 
region.  That  is  what  conservation  of  the  timber  supply  means.  It 
means  to  take  out  those  trees  which  ought  to  be  taken  out  in  the  interest 
of  the  timber  conservation,  and  it  means  that  all  cutting  in  the  forest 
reserves  shall  be  done  in  a  manner  which  will  not  invite  fires,  and,  second, 
which  will  not  prevent  reforesting. 

I  am  not  speaking  without  some  personal  knowledge  of  this  particular 


556  AMERICAN   FEDERAL   GOVERNMENT 

phase  of  it.  I  am  not  speaking  of  the  details.  You  may  have  some 
things  to  complain  of,  and  no  one  would  be  more  prompt  to  aid  in  correct- 
ing them  than  I.  I  am  speaking  —  for  there  has  been  generalization 
here  without  limit  on  this  subject  —  in  support  of  this  great  national 
policy  for  the  benefit  of  all  the  people,  both  as  to  the  conservation  of  the 
forests  and  the  conservation  of  the  water  supply ;  and  if  I  am  not  very, 
very,  very  much  mistaken  no  people  anywhere  have  as  acute  interest  in 
it  as  the  people  who  occupy  these  States  and  those  who  are  yet  to  occupy 
these  States. 

I  once  spent  six  weeks  in  a  city  in  the  West,  and  during  all  that  time 
I  could  not  see  a  vast  mountain  not  far  away,  because  it  was  obscured  by 
the  smoke  of  forest  fires  which  destroyed  millions,  untold  millions,  of 
property  and  which  worked  a  lasting  harm  to  people  who  yet  are  to  go 
into  these  sections.  So  it  will  not  do  to  say  the  Government  has  no  right 
to  hold  its  lands,  if  it  chooses,  nor  will  it  do  to  say  that  the  Government 
is  not  far-sighted  and  kindly  in  the  policy  which  it  has  adopted  to  hold 
its  lands  and  to  protect  its  lands,  and  so  to  utilize  them  as  to  benefit  the 
people  of  the  localities  and  benefit  the  people  of  the  country. 

When  Senators  balk  about  the  Government  becoming  a  lumber 
merchant,  that  is  incidental.  The  forests  would  be  swept  away  by  fire, 
spoliation,  and  otherwise  but  for  these  timber  reservations.  You  would 
have  the  same  experience  .we  had,  and  we  had  forests  which,  I  have 
been  told,  could  not  be  exceeded  anywhere  in  beauty  —  white  pine  — 
except  in  a  part  of  Idaho.  I  met  one  man  who  had  years  ago  ridden 
through  the  Bitter  Root  Mountains  and  down  along  the  stream  for  miles 
and  for  days,  and  he  told  me  that  he  never  had  seen  such  a  forest  in  his 
life;  and  he  had  seen  forests.  Ten  days'  fire  would  have  ruined  it  for 
miles  and  miles;  and  there  is  no  one  on  earth  who  hungers  more  for 
such  trees  and  who  have  more  money  with  which  to  buy  them  than  a 
great  many  lumber  corporations.  It  is  a  legitimate  business.  I  am  not 
reprobating  them,  but  there  is  no  reason,  founded  in  public  policy,  why 
the  Government  of  the  United  States  should  open  to  homestead  entry 
every  i6o-acre  tract  of  timber  land  which  it  owns,  provided  that  land 
when  denuded  of  its  trees  would  be  arable.  And  that  doctrine,  I  repeat, 
would  simply  destroy  the  forests  and  turn  over  —  not  to  be  too  carefully 
exercised,  either,  in  the  public  interest  as  to  the  manner  of  cutting  and 
clearing  —  to  corporations  and  wealthy  firms  the  timber  supply  of  the 
West. 

Thousands  of  men  who  have  been  driven  out  by  the  destruction  of 
our  forests  in  Wisconsin  have  gone  to  Idaho  and  to  other  Western  States 
to  purchase  timber.  They  are  good  men. 

Mr.  HEYBURN.  May  I  make  a  suggestion  to  the  Senator  from  Wis- 
consin ? 

Mr.  SPOONER.    If  it  pertains  to  this  subject. 

Mr.  HEYBURN.    I  should  like  to  suggest  that  those  who  got  the  most 


LEGISLATIVE  PROBLEMS  557 

of  the  forests  of  Wisconsin  and  realized  the  benefit  of  them  are  now  in 
Idaho.  I  admit  that. 

Mr.    SPOONER.    I  do  not  know  anything  about  that. 

Mr.  HEYBURN.    I  do. 

Mr.  SPOONER.  That  makes  no  difference.  The  lumberman  of  Wis- 
consin is,  I  think,  as  good  as  the  lumberman  from  Idaho  or  anywhere 
else  in  the  world.  There  is  no  distinction  to  be  drawn  between  people 
of  different  States  on  that  basis. 

The  question  is,  Shall  the  Government  dispose  of  these  lands,  take 
no  care  for  the  future  either  as  to  the  water  supply  or  the  timber  supply, 
or  shall  it  go  along  in  a  wise,  not  extravagant,  but  liberal  prosecution 
of  the  work  of  forest  reservations  ?  For  myself,  I  have  no  doubt  about  it. 
I  know  it  has  its  hardships  to  the  people  of  Idaho,  to  the  people  of  Mon- 
tana, and  to  the  people  of  other  Western  States.  I  know  in  a  way  it 
deters  settlement.  I  know  perfectly  well  the  truth  of  what  the  Senator 
from  Oregon  and  the  Senator  from  Idaho  say,  that  a  man  with  a  family 
is  loath  to  settle  upon  a  piece  of  land  to  live  for  years  without  neighbors, 
unable  to  establish  schools,  and  all  that. 

But,  Mr.  President,  this  law,  notwithstanding,  is  a  wise  and  generous 
law.  I  have  traveled  for  days  in  beautiful  valleys  along  the  Snake  River 
and  other  streams  in  Wyoming,  fertile,  susceptible  of  cultivation,  which 
could  be  entered  under  this  law.  The  mountains  are  full  of  valleys, 
some  of  them  extensive,  other  less  so,  susceptible  of  cultivation  and  all 
open  to  settlement  under  existing  law. 

There  has  been  no  conflict,  and  is  none  between  the  Government  and 
the  States  as  to  the  enforcement  of  the  game  laws.  I  am  told  that  the 
officials  of  the  Forest-Reserve  Service  are  under  instructions  to  cooperate 
in  the  enforcement  of  the  State  laws  in  respect  to  game,  and  that  they 
are  doing  it. 

As  to  coal,  we  have  a  bill  pending  here  which  without  impeding  the 
development  from  the  agricultural  standpoint  of  the  State  in  which  there 
are  deposits  of  coal  owned  by  the  Government,  the  coal  can  be  conserved 
by  disposing  of  the  surface  for  agricultural  purposes  and  reserving  to 
Government  the  coal  and  under  reasonable  conditions  to  permit  its  being 
taken  out. 

There  is  a  wise  public  policy  in  that,  Mr.  President.  So  taking  it  by 
and  large  I  have  no  doubt  that  this  forest-reserve  policy  as  a  policy  is  of 
the  greatest  benefit  to  the  people  of  this  country,  and  especially  to  the 
people  of  the  far  West. 

Now,  take  the  lumber  business.  I  want  to  read  a  few  words,  better 
used  than  I  could  use  them,  from  a  statement  which  I  asked  from  Mr. 
Pinchot.  The  Senator  from  Colorado  spoke  of  him  as  a  person  of  miracu- 
lous excellence.  I  am  sure  he  claims  no  perfection.  I  am  sure  he  would 
not  ask  any  man  to  put  him  above  his  fellows.  But  he  is  remarkable 
for  his  knowledge  in  a  practical  and  a  theoretical  way  of  forestry,  of 


558  AMERICAN   FEDERAL   GOVERNMENT 

conserving  the  existing  forests  and  of  planting  and  rearing  trees  for 
future  forests.  He  is  remarkable  for  another  thing,  that  being  a  young 
man,  a  man  of  brains,  a  man  of  wealth,  a  man  of  education,  to  whom 
larger  possibilities  in  politics  or  business  open  themselves,  but  has  chosen 
to  devote  himself,  sacrificially  in  some  respects,  to  this  great  work  of 
forest  conservation,  of  perpetuating  for  the  people  yet  to  come,  who  will 
inhabit  the  valleys  and  the  arable  lands  and  the  semiarid  lands  of  the 
West,  a  water  supply  without  which  it  is  an  irreclaimable  desert.  He 
does  it  for  the  love  of  it,  not  for  your  little  pitiful  salary.  There  are  not 
many  men  within  my  knowledge  who  have  been  willing  to  do  that. 

Instead  of  being  criticised  he  deserves  the  highest  commendation,  Mr. 
President,  in  my  judgment.  Of  course  he  may  have  made  mistakes. 
This  policy  began  not  many  years  ago.  It  has  made  great  progress,  not 
simply  in  the  increase  in  acreage  of  the  forest  reserves,  but  in  the  system, 
in  the  methods  adopted,  and  in  the  results.  It  has  gone  far  enough  under 
his  supervision  to  vindicate  the  policy  as  one  of  great  public  value. 

He  sent  me  this  statement  at  my  request,  and  I  will  read  a  part  of  it. 
It  is  a  statement  in  which  I  have  the  utmost  confidence. 

In  the  creation  of  reserves  agricultural  land  is  carefully  excluded  so  far  as 
possible,  but  since  the  nature  of  the  country  makes  it  impossible  to  avoid  in- 
cluding occasional  small  isolated  areas,  such  areas,  when  shown  to  be  in  fact 
agricultural  are  opened  to  bona  fide  settlers  under  the  act  of  June  n,  1906. 

All  the  resources  of  the  reserves —  wood,  water,  and  grass —  are  open  to 
the  fullest  use  and  development,  the  only  restriction  being  that  they  shall  be  so 
used  as  to  be  permanently  usable. 

That  is  the  object  and  the  value  of  the  policy.  It  looks  not  simply 
to  to-day,  but  to  long  years  to  come ;  not  simply  to  the  people  who  are 
living  in  the  section  now,  but  to  the  people  who  are  yet  to  come  and  who 
will  come. 

I  ask  leave  to  incorporate  this  statement  in  my  remarks,  Mr.  President, 
and  I  have  nearly  finished. 

The  VICE-PRESIDENT.    Without  objection,  permission  is  granted. 

The  matter  referred  to  is  as  follows : 

The  forest  reserves  cover  mountainous  land  in  the  West  more  valuable  for 
forestry  than  for  any  other  purposes.  The  act  of  June  4,  1897,  specifically 
provides  that  no  forest  reserves  shall  be  established  except  to  improve  and  pro- 
tect the  forest  or  to  secure  favorable  conditions  of  water  flow,  and  to  furnish  a 
continuous  supply  of  timber  for  the  use  of  citizens. 

In  the  creation  of  reserves  agricultural  land  is  carefully  excluded  so  far  as 
possible,  but  since  the  nature  of  the  country  makes  it  impossible  to  avoid  in- 
cluding occasional  small  isolated  areas,  such  areas,  when  shown  to  be  in  fact 
agricultural,  are  opened  to  bona  fide  settlers  under  the  act  of  June  n,  1906. 

All  the  resources  of  the  reserves —  wood,  water,  and  grass —  are  open  to 
the  fullest  use  and  development,  the  only  restriction  being  that  they  shall  be  so 
used  as  to  be  permanently  usable. 


LEGISLATIVE  PROBLEMS  559 

The  mineral  laws  apply  in  forest  reserves  exactly  as  they  do  outside,  as  pro- 
vided in  the  act  of  June  4,  1897. 

Timber  on  the  forest  reserves  which  can  be  cut  safely  and  for  which  there  is 
actual  need  is  for  sale.  Applications  to  purchase  are  invited.  Green  timber 
is  for  sale  except  where  its  removal  makes  a  second  crop  doubtful  or  reduces 
the  timber  supply  below  the  point  of  safety  for  local  needs  or  injures  the  streams. 
All  dead  timber  is  for  sale. 

So  far  as  the  requirements  of  law  for  sale  after  advertisement  to  the  highest 
bidder  will  permit,  sales  are  made  to  small  men,  so  as  to  prevent  monopoly  by 
disposing  of  timber  to  large  corporations. 

Timber  valued  at  $500,945.76  was  sold  during  the  last  fiscal  year.  The 
time  allowed  for  cutting  was  from  one  to  five  years,  and  amount  actually  re- 
ceived for  timber  cut  and  removed  amounted  to  $242,668.23. 

Settlers  and  residents  are  given  free  use  of  timber  in  establishing  and  main- 
taining their  homes.  During  the  last  calendar  year  13,575  free-use  permits 
were  issued,  to  the  value  of  $68,547.41. 

Living  trees  to  be  cut  are  carefully  selected  and  marked.  Careful  and 
effective  provision  is  made  for  the  reproduction  and  safety  of  the  forests. 

The  grazing  industry  of  the  West  depends  on  the  forest  reserves,  because 
the  summer  range,  without  which  the  winter  range  is  useless,  lies  almost 
wholly  in  the  mountains.  Grazing  animals  are  excluded  from  cut-over  areas 
to  safeguard  the  reproduction. 

It  would  be  impossible  to  exclude  all  grazing  from  the  western  reserves 
without  ruining  the  live-stock  business  of  the  country  and  raising  the  price  of 
meat.  Under  proper  regulation  the  grazing  does  little  or  no  harm. 

Since  the  transfer  of  the  Forest  Service  to  the  Department  of  Agriculture 
two  years  ago  the  area  of  the  reserves  has  increased  from  58,000,000  to 
127,000,000  acres;  the  personnel  has  more  than  doubled;  the  use  of  the  re- 
serves by  the  western  people  has  increased  many  fold,  and  yet  under  the  esti- 
mates the  total  cost  to  the  Government  of  forest  work  during  the  coming  fiscal 
year  will  have  increased  only  from  $800,000  to  $900,000. 

During  the  last  fiscal  year  of  the  administration  of  the  reserves  in  the  Land 
Office  the  total  expenses  of  the  Government  forest  work  in  the  Interior  and 
Agricultural  Departments  were  $800,000  and  the  receipts  were  $60,000,  a  net 
charge  of  $407,000.  During  the  first  full  fiscal  year  of  administration  by  the 
Forest  Service  the  expenses  were  $1,195,000,  the  receipts  $767,000 —  a  net 
cost  to  the  Government  of  $430,000. 

The  policy  thus  inaugurated,  if  allowed  to  continue,  would  have  made  the 
Forest  Sen-ice  self-sustaining  in  five  years  from  the  transfer,  or  three  years 
more,  and  while  vastly  increasing  the  use  of  the  reserves  by  the  western  people 
and  the  efficiency  of  their  administration  over  an  area  more  than  double. 

Protection  against  fire  is  very  successful,  fires  having  almost  disappeared. 
The  last  fiscal  year  they  burned  over  less  than  one-tenth  of  i  per  cent  of  the 
total  area. 

Trespass  is  practically  at  an  end. 

The  best  supporters  of  forest  reserves  are  the  people  who  live  in  them  or 
immediately  about  their  borders.  The  great  associations  of  stockmen,  lumber- 
men, miners,  and  others  support  the  policy. 

The  following  instructions  from  the  Secretary  of  Agriculture  to  the  Forrester 
outline  the  policy: 


560  AMERICAN  FEDERAL   GOVERNMENT 

"In  the  administration  of  the  forest  reserves  it  must  be  clearly  borne  in 
mind  that  all  land  is  to  be  devoted  to  its  most  productive  use  for  the  permanent 
good  of  the  whole  people  and  not  for  the  temporary  benefit  of  individuals  or 
companies.  All  the  resources  of  forest  reserves  are  for  use,  and  this  must  be 
brought  about  in  a  thoroughly  prompt  and  businesslike  manner,  under  such 
restrictions  only  as  will  insure  the  permanence  of  these  resources.  The  vital 
importance  of  forest  reserves  to  the  great  industries  of  the  Western  States  will 
be  largely  increased  in  the  near  future  by  the  continued  steady  advance  in  settle- 
ment and  development.  The  permanence  of  the  resources  of  the  reserves  is 
therefore  indispensable  to  continued  prosperity,  and  the  policy  of  this  Depart- 
ment for  their  protection  and  use  will  invariably  be  guided  by  this  fact,  always 
bearing  in  mind  that  the  conservative  use  of  these  resources  in  no  way  conflicts 
with  their  permanent  value. 

"You  will  see  to  it  that  the  water,  wood,  and  forage  of  the  reserves  are  con- 
served and  wisely  used  for  the  benefit  of  the  home  builder  first  of  all,  upon 
whom  depends  the  best  permanent  use  of  lands  and  resources  alike.  The  con- 
tinued prosperity  of  the  agricultural  lumbering,  mining,  and  live-stock  interests 
is  directly  dependent  upon  a  permanent  and  accessible  supply  of  water,  wood, 
and  forage,  as  well  as  upon  the  present  and  future  use  of  these  resources  under 
businesslike  regulations,  enforced  with  promptness,  effectiveness,  and  common 
sense.  In  the  management  of  each  reserve  local  questions  will  be  decided  upon 
local  grounds.  The  dominant  industry  will  be  considered  first,  but  with  as 
little  restriction  to  minor  industries  as  may  be  possible;  sudden  changes  in 
industrial  conditions  will  be  avoided  by  gradual  adjustment  after  due  notice, 
and  where  conflicting  interests  must  be  reconciled  the  question  will  always  be 
decided  from  the  standpoint  of  the  greatest  good  to  the  greatest  number  in  the 
long  run." 

In  a  word,  the  object  of  the  Forest  Service,  as  the  President  has  declared,  is 
to  create  and  maintain  prosperous  homes  and  conserve  the  natural  resources 
upon  which  those  homes  depend. 

Just  what  does  it  mean  when  unreserved  public  lands  are  proclaimed  public 
forest  reserves  ?  Let  us  get  down  to  simple  facts  and  see  what  kind  of  a  change 
really  takes  place. 

We  have,  to  start  with,  throughout  the  Rocky  Mountains  and  Pacific  coast 
regions  vast  areas  of  high  and  rocky  land,  sometimes  densely,  sometimes 
sparsely  timbered,  frequently  covered  with  brush,  and  usually  producing  good 
crops  of  grass  and  other  herbage;  vast  areas  which  contain  the  sources  of  in- 
numerable streams,  the  waters  of  which  are  used  for  irrigation,  power,  and 
transportation.  These  lands  are  worthless  for  settlement.  If  unreserved,  they 
will  not  be  taken  up  for  homes  or  cultivated  for  the  support  of  families.  Their 
altitude,  their  generally  poor  soil,  their  very  nature  makes  agriculture  impos- 
sible or  unprofitable.  That  they  are  in  no  sense  of  the  word  homestead  lands 
has  been  determined  beyond  all  doubt  through  careful  examinations  on  the 
ground  by  western  men  familiar  with  western  conditions;  by  men  who  know 
from  practical  experience  what  lands  can  be  cultivated  and  what  lands  can  not 
be  cultivated  with  success. 

What  are  these  vast  areas  good  for? 

The  production  of  timber  and  wood,  for  one  thing.  The  production  of 
summer  range  for  cattle  and  sheep  for  another  thing.  And  last,  but  not  least, 
they  are  the  all -important  conservers  of  the  water  supply  for  the  farms  and 


LEGISLATIVE  PROBLEMS  561 

manufactures  of  the  lowlands.  They  are  the  great  reservoirs  upon  which  the 
solid  prosperity  of  the  valleys  depends. 

How  are  these  resources  used  when  the  lands  are  still  unreserved? 

The  timber  is  rapidly  taken  up  by  individuals  under  several  of  the  land 
laws.  From  individuals  it  passes  to  companies  and  corporations,  by  whom 
the  most  valuable  portion  of  it  is  cut  and  marketed.  That  which  remains  is 
burned  up,  and  nine  times  out  of  ten  the  land  becomes  a  nonproductive  waste, 
utterly  valueless  to  the  county,  State,  and  nation.  The  large  timber  owner 
profits,  but  only  by  what  he  makes  on  the  timber  cut.  The  county  and  State 
profit,  but  only  temporarily,  while  taxes  come  in  and  before  the  land  becomes 
a  waste.  The  wage-earner  profits,  but  also  only  temporarily.  When  the  timber 
is  gone  beyond  repair  his  occupation  goes  with  it.  The  Government  receives 
at  the  most  but  $2.50  an  acre  for  timber  which  has  an  actual  market  value  of 
from  $5  to  $100  an  acre  or  more. 

When  this  unreserved  public  land  is  made  into  a  forest  reserve  the  timber  is 
still  available.  It  is  not  locked  up  or  withdrawn  from  market.  It  is  not  left 
to  rot  from  age  and  be  wiped  out  by  fire.  It  is  still  ready  to  assist  in  the  general 
development  of  the  region  concerned.  Anybody  can  buy  it  —  a  thousand  feet 
or  ten  million  feet.  It  is  there  to  be  used  by  the  settler,  or,  if  the  settler  does 
not  need  it,  by  the  big  corporation ;  neither  is  excluded.  But  with  this  very 
important  difference —  the  land  must  be  wisely. used —  so  used  that  it  will 
continue  to  produce  timber,  the  greatest  possible  quantity  of  it,  and  forever. 
The  timber  is  so  harvested  that  future  crops  are  assured,  just  as  with  cotton, 
wheat,  or  corn.  The  lands  are  protected  against  fire,  and  millions  of  dollars' 
worth  of  timber  are  saved  to  the  Government  each  year  which  on  the  unre- 
served public  domain  goes  up  in  smoke.  The  timber  resources  are  made 
permanent.  The  lands  are  kept  productive,  and  the  county,  State,  and  nation 
reap  the  benefit.  The  prosperity  which  use  brings  is  lasting  prosperity,  not  a 
transitory  boom.  Present  greed  is  forced  to  yield  to  the  requirements  of  future 
development.  Moreover,  the  nation  receives  a  fair  price  for  its  own.  If  private 
or  corporate  timber  in  the  same  locality  sells  for  $50  an  acre,  the  United 
States  can  sell  its  own  timber  for  $50  an  acre —  for  what  it  is  worth.  Is  there 
any  reason  why  it  should  be  given  away  for  $2.50  an  acre,  as  it  must  be  if  the 
land  is  unreserved? 

So  far,  then,  as  timber  is  concerned,  throwing  the  public  lands  into  forest 
reserves  means  simply  that  their  timber  resources  are  better  and  more  wisely 
used,  for  the  general  benefit,  now  and  in  the  long  run.  That  is  all.  There  is  no 
other  difference. 

How  is  the  range  used  when  the  lands  are  still  unreserved? 

STOCKMEN 

It  is  open  to  all,  without  restriction  or  regulation.  As  a  consequence,  there  is 
continual  warfare  between  the  big  stockmen  and  the  little  stockmen,  between 
sheep  and  cattle  men,  and  the  range  deteriorates  constantly  from  overgrazing. 
Take  almost  any  part  of  the  West  and  ask  the  old  settlers  how  the  grass  com- 
pares with  that  of  former  years.  In  many  localities  the  range  is  almost  totally 
destroyed. 

If  a  forest  reserve  is  made  out  of  this  public  land,  the  range  is  not  locked  up. 
It  does  not  cease  to  benefit  the  general  welfare.  It  is  grazed  by  cattle  and 


562  AMERICAN   FEDERAL   GOVERNMENT 

sheep.  It  is  used  by  the  small  man  and  the  big  man.  But  with  this  important 
difference —  its  use  is  so  regulated  that  the  big  man  and  the  small  man  are 
both  assured  of  the  share  which  rightfully  belongs  to  them  through  prior  use 
and  settlement ;  and  the  grazing  is  so  regulated  that  the  range  will  support  the 
total  number  of  stock  allowed  without  deterioration.  It  is  kept  at  its  highest 
productive  capacity.  It  is  precisely  the  same  with  the  range  as  with  the  timber. 
A  forest  reserve  makes  sure  of  a  better  and  wiser  use  and  a  permanent  prosper- 
ity. The  stockman  wants  it. 

What  happens  to  these  vast  areas  from  the  standpoint  oi  water  supply  when 
they  are  still  a  part  of  the  unreserved  public  domain? 

They  are  left  to  the  ravages  of  fire,  to  destructive  lumbering,  and  destructive 
grazing.  Their  cover  of  forest,  brush,  and  grass  is  slowly,  but  surely  destroyed. 
They  gradually  lose  their  sponge-like  properties  as  great  reservoirs  for  holding 
and  regulating  the  waterflow.  The  rains  rush  quickly  down  the  slopes,  causing 
floods  in  the  wet  season  and  droughts  in  the  dry  seasons. 

In  forest  reserves  these  lands  are  systematically  protected.  The  most  im- 
portant protection  is  from  fire.  There  is  an  organized  force  on  the  ground 
whose  business  it  is  to  prevent  this  destruction.  It  is  not  a  perfect  force  at 
present,  but  it  is  all  the  time  becoming  more  efficient.  If  anyone  doubts  the 
effectiveness  of  this  systematic  protection,  let  him  compare  the  chaotic  condi- 
tions on  the  unreserved  pubjic  domain  with  those  on  the  forest  reserve.  The 
results  are  there  to  speak  for  themselves. 

Let  us  look  at  this  whole  matter  from  the  standpoint  of  what  it  really  means. 
In  many  of  the  Western  States  there  are  very  considerable  areas  of  public 
lands  brought  together  into  forest  reserves.  Maps  which  show  these  areas 
colored  in  green  seem  to  conjure  up  grave  fears  in  the  minds  of  the  opponents 
of  the  Government's  policy,  and  these  green  areas  are  pointed  to  as  if  they 
were  huge  tracts  surrounded  by  stone  walls  dropped  upon  the  mountains  as  a 
blanket  to  all  future  development.  The  cry  goes  up  that  so  and  so  many  mil- 
lion acres  have  been  closed  to  settlement.  The  truth  is  that  settlement  is  im- 
possible from  the  nature  of  the  case.  If  there  were  a  chance  of  settlement, 
these  areas  would  not  be  in  forest  reserves.  Nobody  wants  to  make  forest  re- 
serves out  of  agricultural  lands. 

Then  the  cry  is  raised  that  the  resources  are  locked  up  and  that  the  present 
and  future  development  of  the  region  is  crushed  beyond  hope.  This  objection 
is  absolutely  without  foundation  for  the  simple  reason  that  all  the  resources  on 
each  and  every  forest  reserve  are  now  being  used. 

They  are  being  used  by  those  who  have  the  best  right  to  their  use.  They 
are  being  used  for  the  greatest  good  of  the  greatest  number  in  the  long  run. 
And  their  use  will  continue  in  just  this  way. 

Forest  reserve  is  an  unfortunate  term.  As  a  matter  of  fact,  the  resources  of 
these  mountain  areas  are  not  reserved,  they  are  conserved.  In  other  words, 
they  are  wisely  used.  The  name  misleads. 

Mr.  SPOONER.  It  is  a  question  which  is  the  wisest  and  best,  to  do 
away  with  this  policy,  except  up  on  the  mountains  where  the  land  never 
can  be  utilized  for  farming  purposes,  or  keep  it  for  the  people's  use. 

Mr.  HEYBURN.    What  people? 

Mr.  SPOONER.  The  people  who  live  out  there  now  and  the  people 
who  are  to  live  out  there  after  the  Senator  —  which  I  hope  will  be  a 


LEGISLATIVE   PROBLEMS  563 

great  many  years  —  shall  have  passed  to  his  last  sleep.  It  is  not  for 
to-day,  and  that  is  where  the  mistake  is.  It  is  in  looking  upon  Idaho 
purely  from  the  standpoint  of  to-day.  You  can  pay  too  much  for  the 
too  rapid  development  of  a  new  State.  You  can  pay  too  much  for  rapid 
increase  in  population  in  such  States.  You  can  lay  now  a  foundation 
deep  and  broad  and  strong  for  future  wealth  for  all  the  people  of  Idaho 
and  the  West  generally.  I  think  this  policy  does  it.  I  think  Congress 
ought  not  to  be  penurious  in  carrying  it  on.  I  think  this  notion  that 
no  money  shall  be  expended  in  a  work  of  this  kind  without  estimates  is 
fatal  to  the  work.  It  is  full  of  vicissitudes.  More  men  may  be  required 
to-morrow  by  a  thousand  than  are  required  to-day.  It  depends  upon 
fire ;  it  depends  upon  whether  a  whirlwind  shall  sweep  over  the  timber, 
as  to  what  will  be  required  to  take  it  out  and  preserve  it.  There  are 
many  things,  Mr.  President. 

**#*  #*#* 

Mr.  PATTERSON.  When  you  say  my  proposition  is  a  subtle  plan  to 
destroy  the  forest  reservation,  that  is  pretty  near  to  charging  a  motive. 

Mr,  SPOONER.  I  did  not  intend  to  impugn  any  improper  motive  to 
the  Senator. 

Mr.  PATTERSON.  I  do  not  take  offense  at  it,  but  I  want  to  make  a 
statement  in  that  connection.  Then  I  will  give  way  to  the  Senator. 

The  VICE-PRESIDENT.  Does  the  Senator  from  Wisconsin  yield  to 
the  Senator  from  Colorado? 

Mr.  SPOONER.    Certainly. 

Mr.  PATTERSON.  Mr.  President,  the  Senator  from  Wisconsin  utterly 
mistakes  my  attitude  and  the  attitude  of  the  people  of  my  State  upon 
the  question  of  forest  reserves.  I  want  to  say  to  him  that  I  am  heartily 
in  favor  of  forest  reserves,  and  if  there  were  a  proposition  to  abolish 
absolutely  those  which  have  been  made,  as  far  as  I  am  able  I  would  be 
in  the  front  rank  to  oppose  their  abolition,  for  I  want  to  tell  you  that  we 
in  the  mountains  realize  far  more  keenly  than  you  gentlemen  of  the  plains 
the  benefit  to  us  of  forest  reserves  in  the  way  of  restraining  the  melting 
snows  in  the  spring  and  early  summer. 

We  are  at  the  source  of  the  water  supply  of  nearly  all  of  our  great 
streams,  in  whatever  direction  they  flow  and  to  whatever  ocean,  and  as 
a  rule  our  waters  flow  through  our  State  with  tremendous  speed  and 
velocity  and  power.  Now  and  then,  when  the  snows  melt  under  a  sud- 
denly heated  atmosphere,  we  have  great  calamities  in  the  mountains  by 
reason  of  the  unusual  and  unrestrained  volume  of  water.  Therefore 
we  want  the  forest  reserves  held  intact.  We  desire  to  cherish  them,  to 
help  to  maintain  them,  to  support  them,  to  regulate  them,  and  to  do 
whatever  is  necessary  to  preserve  them  from  fire  and  to  extinguish  fires 
when  they  occur. 

Let  me  suggest  another  thought  with  which  those  who  do  not  live  in 
the  mountains,  perhaps,  are  not  familiar,  and  that  is  that  we  do  not 


564  AMERICAN   FEDERAL   GOVERNMENT 

have  homesteads  made  by  clearing  forests.  In  my  thirty-odd  years' 
experience  in  Colorado  —  and  I  have  traveled  from  one  end  of  the 
State  to  the  other,  in  all  forms  of  conveyances  and  upon  all  sorts  of 
animals  —  I  want  to  say  to  the  Senator  from  Wisconsin  I  have  not 
known  of  a  single  farm  or  homestead  made  by  clearing  the  land  of 
timber.  The  general  rule  is  that  our  timber  lands  are  not  good  agri- 
cultural lands,  and  therefore  we  do  not  desire  to  denude  the  lands  of 
timber  for  the  purpose  of  opening  them  up  to  settlement,  for  we  have 
had  no  settlements  upon  such  lands  and  no  desire  to  make  settlements 
on  timber  lands.  As  a  rule  spruce  and  pine  timber  lands  do  not  make 
good  agricultural  land,  especially  in  the  mountain  section  of  the  country. 

Then,  what  motive  can  we  have?  Certainly  those  of  us  who  live 
there  do  not  wish  to  see  the  timber  of  the  country  go  into  the  hands  of 
great  speculators.  We  want  so  much  timber  as  may  be  needed  for 
domestic  uses  or  even  for  outside  commerce  cut  and  disposed  of  under 
wise  rules  and  regulations,  and  we  want  the  Government  to  get  the 
benefit  of  the  value  of  every  stick  of  timber  that  is  cut  from  the  public 
domain.  That  is  the  attitude  of  the  Senators  and  Representatives. from 
the  mountain  States  upon  the  subject  of  forest  reserves. 

And  why  should  we  have  a  subtle  or  any  other  plan  to  destroy  forest 
reserves  when  forest  reserves  were  first  championed  by  western  Senators, 
and  when  those  of  us  who  are  making  this  struggle  upon  the  floor  of  the 
Senate  to-day  are  the  real  friends  of  forest  reserves  and  may  be  required 
to  interpose  our  influence  to  preserve  them,  if  this  method  of  their  ad- 
ministration* is  continued  ?  It  is  a  serious  matter,  Mr.  President,  to  take 
from  a  great  State  two-thirds  or  a  fourth  or  a  fifth  of  its  agricultural  area 
and  turn  it  over  to  live  stock  and  to  silence  when  men  and  women  and 
children  are  hungry  for  land;  and  the  desire  for  land  ownership  is 
the  dominating  desire  of  the  real  patriotic  American  citizen.  We  do 
not  want  this  system  to  break  down.  So  indignant  are  the  people  of 
the  western  portion  of  the  State  I  represent  about  the  administration 
of  forest  reserves  that  they  are  to-day  in  a  state  of  rebellion,  and 
meeting  after  meeting  has  been  called  where  resolutions  have  been 
passed  resolving  to  interpose  all  obstacles  to  the  continuation  of  such 
an  administration  and  refusing  to  pay  the  license  fees  demanded  of 
them  before  they  can  put  a  head  of  stock  of  any  kind  within  a  forest 
reserve. 

The  truth  of  it  is  that  within  forest  reserves  in  my  State  there  are 
millions  upon  millions  of  acres  which  are  not  forest  lands  at  all,  but 
they  are  agricultural  and  grazing  lands,  which  are  taken  from  the  portion 
that  is  open  to  the  people  of  the  country  for  settlement,  and  we  shut 
them  up  to  meet  the  hobby  of  the  gentleman  who  is  at  the  head  of  this 
Bureau.  Like  the  Senator  from  Idaho,  whoever  represents  Colorado 
and  whoever  continues  to  represent  the  mountain  States  and  the  States 
affected  by  this  new-fangled  system  of  taking  care  of  the  public  lands 


LEGISLATIVE   PROBLEMS  565 

within  them  will  fight,  and  they  must  fight  all  such  institutions  as  this. 
If  they  do  not  they  will  be  rejected  by  their  constituencies,  for  to  hold 
an  office  of  this  kind  from  the  West  a  man  must  represent  the  sentiment 
of  his  people. 

Mr.  SPOONER.  Mr.  President,  I  do  not  yield  my  assent  to  the  prop- 
osition made  by  the  Senators  from  the  Western  States  that  they  are  the 
only  members  of  this  body  who  have  to  do  with  this  question,  or  the 
imputation,  if  I  may  call  it  such,  or  criticism,  which  is  suggested  as  to 
those  of  us  who  do  not  live  in  the  far  West,  for  having  the  temerity  to 
entertain  or  to  express  views  upon  this  subject.  We  are  all  Senators  of 
the  United  States.  The  Senator  from  Idaho  is  a  Senator  from  Idaho, 
but  he  is  not  a  Senator  of  Idaho.  He  is  a  Senator  of  the  United  States 
from  Idaho.  I  am  a  Senator  of  the  United  States  from  a  State.  My 
first  duty,  and  the  first  duty  of  every  Senator,  as  I  understand  it,  is  to 
represent  the  general  public  interest,  and  subordinate  to  the  general 
public  interest  the  local  interest  of  his  State.  The  Senator  from  a  State 
in  which  there  happens  to  be  fifteen,  twenty,  twenty-five,  or  fifty  million 
acres  of  Government  land  can  not  ask  that  he  and  his  colleague  shall 
be  permitted  to  say,  all  others  by  courtesy  following  them,  what  disposi- 
tion shall  be  made  of  that  property  belonging  to  the  Government  within 
his  State. 

This  is  property  of  the  United  States,  127,000,000  acres,  in  forest 
reserves ;  and  it  is  not  only  the  right,  but  it  is  the  duty  of  every  Senator 
of  the  United  States  to  give  the  matter  thought,  and  to  determine,  if  it 
be  possible  to  do  it,  upon  that  line  of  policy  with  reference  to  its  disposi- 
tion which  will  best  conserve  the  general  public  interest  of  the  United 
States  and  the  interest  as  well  of  the  State  in  which  that  land  happens 
to  be  located. 

I  do  not  live  in  a  mountainous  State,  but  I  live  in  a  State  the  northern 
portion  of  which  was  covered  within  my  memory  with  magnificent 
forests.  It  is  gone,  and  within  a  very  few  years  vast  quantities  have 
been  wasted,  affecting  detrimentally  the  water  supply  and  affecting  in 
economic  ways  injuriously  the  people  of  that  State.  Taking  account 
of  my  observation  in  a  lumber  region  in  which  I  live,  reasoning  from 
the  past  to  the  future,  knowing  or  having  reason  to  believe  that,  if  un- 
restricted, what  happened  in  Wisconsin  forests  will  happen  in  Idaho, 
and  will  happen  in  other  States  having  virgin  forests  of  timber.  I  believe 
with  all  my  heart  that  in  the  interest  of  those  States  on  general  principles, 
as  well  as  in  the  interest  of  all  the  people,  it  is  important  that  the  forest 
reservation  policy  be  not  essentially  crippled. 

If  land  in  large  bodies  has  been  included  within  forest  reservations 
that  ought  to  be  without  them,  that  is  one  thing.  I  would  not  ask  nor 
would  I  vote  to  exclude,  because  of  a  forest  reservation,  settlers  from 
occupying  the  land  in  any  State  of  the  West;  and  if  lands  ought  to  be 
taken  out  of  the  reservation,  if  the  lines  of  the  reservation  should  be 


566  AMERICAN  FEDERAL   GOVERNMENT 

changed  in  order  to  throw  open  to  homestead,  to  settlement,  to  occupa- 
tion, and  cultivation  lands  in  Idaho  or  anywhere  else  I  would  not  for  one 
moment  oppose  it.  But,  Mr.  President,  to  take  valleys  within  a  reserva- 
tion, not  along  its  border,  but  in  its  heart  or  near  it,  fit  for  agriculture, 
out  of  the  reservation  would  be  to  destroy  the  reservation.  To  my  mind 
it  is  impossible  to  go  further  than  the  law  now  goes  in  the  direction  of 
throwing  open  such  land  within  the  reservation  to  settlement  without 
destroying  the  reservation. 

I  am  in  favor  of  the  Appalachian  reservation  when  the  facts  in  regard 
to  it  can  be  ascertained.  I  believe  it  will  be  a  wonderful  boon  to  the 
South  and  as  well  of  vast  advantage  in  many  ways  to  some  of  the  North- 
ern States,  and  a  matter  of  great  wealth  in  the  long  run  to  the  country 
at  large.  I  am  in  favor  of  the  policy.  If  lands  are  devoted  under  im- 
proper regulations  to  sheep  raising  or  grazing,  let  those  regulations  be 
changed.  No  one  can  object  to  that  change.  If  it  be  improper  from  a 
governmental  standpoint  to  charge  stock  owners  and  sheep  owners  for 
grazing  privileges  on  the  Government  lands  let  that  practice  be  abol- 
ished. That  and  all  of  those  matters  might  very  well  be  urged  by  way 
of  amendment  to  the  forest  reservation  act  instead  of  being  projected  or 
attempted  to  be  projected  into  this  bill,  the  object  of  which  is  to 
maintain  and  support  the  general  policy.  There  is  not  an  item  of 
either  of  these  amendments  proposed  to  be  offered  to  this  bill  which  is 
in  order.  They  all  propose  to  change  the  existing  law  and  they  are 
general  legislation. 

I  hope  when  my  friend  from  Idaho  reads  some  of  his  observations 
uttered  this  morning  he  will  feel,  as  I  feel,  that  he  allowed  himself  to 
indulge  in  suggestions,  as  to  some  of  those  who  support  this  general 
proposition  and  have  advocated  a  larger  appropriation,  far  away  from 
any  foundation  in  justice.  I  would  not  be  willing  that  the  Senator  from 
Idaho  should  consciously  and  deliberately  impute  to  me  or  to  my  action 
upon  a  public  measure  here  personal  friendship  for  an  official  or  social 
fondness  for  an  official.  Senators  who  deal  with  the  public  interest, 
under  oath,  can  not  be  supposed  to  do  that.  I  have  met  but  few  times 
the  Chief  Forester.  What  I  have  said  of  him  is  of  his  ability  and  knowl- 
edge of  the  subject  as  it  impresses  me.  Except  for  my  belief  in  the 
policy  and  my  belief  in  the  present  administration,  subject,  perhaps,  to 
some  remodeling  in  matters  complained  of  which  can  be  easily  disposed 
of,  I  would  not  support  this  nor  any  other  bill  or  appropriation  on  per- 
sonal ground,  nor  do  I  know  any  Senator  here  who  would. 

That  is  all  I  want  to  say,  Mr.  President. 


LEGISLATIVE   PROBLEMS  567 


SPEECH   OF   SENATOR   ALBERT    J.   BEVERIDGE   ON 
THE  FOREST   SERVICE1 

The  Senate  having  under  consideration  the  bill  (H.  R.  24815)  making  ap- 
propriations for  the  Department  of  Agriculture  of  the  fiscal  year  ending 
June  30,  1908  — 

MR.  BEVERIDGE  said: 

Mr.  President :  The  question  immediately  before  the  Senate  is  whether 
or  not  the  appropriation  for  the  Forest  Service,  which  the  other  day,  per- 
haps without  full  information,  was  reduced,  is  to  be  restored.  After  the 
very  long  attack  upon  the  .Government's  policy,  I  may  be  permitted 
some  time  to  explain  and  defend  it.  No  debate  which  has  occurred  this 
session  has  been  so  useful  as  this  in  informing  both  the  Senate  and  the 
country  on  a  policy  of  such  high  importance. 

There  are  those  of  us  who  were  deeply  interested  in  this  question  and 
yet  who  were  not  informed  about  what  this  Service  meant  and  about 
the  priceless  work  for  the  whole  country  which  it  was  doing.  There 
have  been  in  the  course  of  this  debate  some  points  made,  charges  made, 
and  various  statements  made  which  require  some  attention;  and  it  is 
to  do  this  that  I  rise  to  address  the  Senate  before  we  take  any  vote,  if  a 
vote,  indeed,  shall  be  necessary  upon  this  amendment. 

SIGNIFICANCE  OF  RESERVE  POLICY 

The  Senator  from  Wyoming  [Mr.  Clark]  the  other  day  began  his 
remarks  by  asking  the  question,  "What  does  this  great  forest-reserve 
system,"  which  he  said  included  some  200,000  square  miles,  "mean?" 
Since  then,  Mr.  President,  the  question  has  been  pretty  fully  answered. 
It  means,  perhaps,  a  wiser  piece  of  public  policy,  so  far  as  the  present 
and  future  prosperity  of  this  people  is  concerned,  than  any  one  single 
other  piece  of  public  policy  affecting  our  lands.  It  means,  Mr.  Presi- 
dent, at  the  bottom  the  conservation  and  the  distribution  of  the  waters, 
upon  which  agriculture  depends,  and  upon  which  the  population  of  the 
Senator's  State  and  of  other  States  similarly  situated  depend  for  its 
growth  more  than  upon  any  one  other  single  element  that  can  be  named. 

RESERVES  THE  MAINSTAY  OF  IRRIGATION 

Mr.  President,  we  are  spending  now,  or  arranging  to  spend,  some 
$50,000,000  for  the  irrigation  of  what  was  once  thought  was  the  "arid 
West."  I  remember  very  well  the  great  fight  which  was  made  for  the 
irrigation  law.  It  was  finally  put  through  the  Senate  and  the  House 

1  Congr.  Record,  Reported  March  i,  1907. 


568  AMERICAN   FEDERAL   GOVERNMENT 

against  the  counsel  of  some  of  the  most  conservative  members  of  each 
body,  but  I  think  its  wisdom  now  is  universally  recognized  by  men  of 
all  parties  and  men  of  all  sections. 

But,  Mr.  President,  you  can  not  irrigate  with  a  word  —  you  have  to 
irrigate  with  water.  You  can  not  irrigate  merely  by  digging  a  hole  in 
the  desert ;  not  enough  water  is  supplied.  In  the  last  analysis  it  must 
come  from  rainfall  in  the  mountains.  The  Senator  knows  better,  no 
doubt,  than  I  do  that  unless  the  forests  on  those  mountains  are  conserved 
irrigation  is  impossible.  Because  if  the  forests  are  felled  the  rain  which 
falls  in  equal  abundance  sweeps  down  in  torrential  floods  and  either 
takes  away  the  reservoirs  or  fills  them  up  with  silt.  So  the  basis  of  the 
whole  irrigation  system,  which  means  so  much  to  the  western  country, 
and  therefore  to  the  whole  country,  rests  .upon  the  foundation  of  the 
forest-reserve  system. 

Mr.  F.  H.  Newell,  Chief  of  the  Reclamation  Service,  has  repeatedly 
emphasized  the  very  great  importance  of  forest  reserves  in  connection  with 
the  Government's  irrigation  work.  In  the  second  annual  report  of  the 
Reclamation  Service  (1902-03)  Mr.  Newell  stated:  "One  of  the  most 
important  matters  in  connection  with  the  permanent  development  of  the 
water  resources  of  the  country  is  the  protection  of  the  catchment  basins 
from  destructive  influences.  It  is  essential  to  preserve  in  such  locations 
a  certain  amount  of  forest  cover,  and  to  prevent  the  destruction  of  these 
by  fire  or  by  overgrazing.  The  headwaters  of  many  of  the  important 
streams  are  already  included  within  forest  reserves,  and  some  of  the 
important  reservoir  sites  are  thus  guarded  from  injury.  In  other  locali- 
ties the  forest  reserve  boundaries  should  be  extended  to  include  the 
country  from  which  comes  the  greatest  part  of  the  run-off.  This  land 
usually  has  no  value  for  cultivation,  is  rugged,  and  suitable  only  for  the 
production  of  trees.  Grazing  to  a  limited  extent  is  practicable  and  will 
not  interfere  with  the  best  use  of  the  waters,  but  if  unrestricted,  the 
number  of  cattle  and  sheep  may  be  increased  to  such  an  extent  that 
the  grass  is  destroyed  and  the  bare  soil  is  washed  by  storms." 

Again,  at  the  hearing  before  the  Committee  on  the  Public  Lands  of 
the  House  of  Representatives  (January  n  to  30,  1901),  Mr.  Newell 
explained  himself  as  follows: 

"As  Mr.  Walcott  has  outlined,  the  great  undertaking  of  national  im- 
portance is  first  to  hold  the  timber-clad  mountains  of  arid  country  from 
which  the  water  comes  in  forest  reserves,  not  keeping  the  timber  from 
use,  but  letting  it  be  cut  under  such  restrictions  as  will  enable  the  ma- 
tured timber  to  be  taken  and  keep  the  forest  itself  as  a  perpetual  crop. 
This  has  already  been  entered  upon  by  the  National  Government." 

ALL  RESERVES  CONSERVE  TIMBER  OR  WATER 

Forest  reserves  are  created  for  these  main  objects:  To  conserve  and 
regulate  stream  overflow,  and  to  maintain  a  permanent  supply  of  timber. 


LEGISLATIVE   PROBLEMS  t  569 

Some  forest  reserves  are  valuable  for  both  these  purposes;  others  are 
valuable  mainly  for  their  effect  upon  stream  flow.  In  southern  Cali- 
fornia, for  example,  forest  reserves  have  been  created  in  the  San  Gabriel 
Mountains,  not  with  the  chief  purpose  of  the  production  of  timber, 
because  these  mountains  are  largely  covered  with  brush  known  as 
chaparral  and  have  few  trees  growing  upon  them.  But  these  southern 
California  reserves  serve  a  most  valuable  purpose  in  maintaining  the 
flow  of  streams  rising  in  them,  which  supply  important  cities,  such  as 
Los  Angeles,  and  are  essential  for  the  development  of  water  power,  and, 
above  all,  in  the  conservation  of  streams  used  in  the  irrigation  of  arid 
lands.  Again,  large  areas  in  these  reserves  are  capable  of  growing  trees, 
although  no  trees  are  growing  upon  them  at  present.  As  rapidly  as  its 
funds  permit,  and  conditions  warrant,  the  Forest  Service  is  planting  up 
these  areas. 

To  make  the  boundaries  of  forest  reserves  conform  exactly  to  the 
boundaries  of  existing  forests  would  be  to  leave  out  of  these  reserves 
large  areas  which  are  of  immense  value  as  a  protection  to  the  water  flow, 
and  which  have  grown  trees  and  will  grow  trees  again  under  proper 
methods.  Obviously  the  boundaries  of  forest  reserves  must  be  drawn 
not  to  conform  to  the  boundaries  of  existing  forests,  but  based  on  the 
actual  character  of  the  country  in  its  relation  to  the  objects  for  which 
reserves  are  created.  Brush  and  grass  covered  areas  of  natural  forest 
land  in  the  mountains,  even  if  they  do  not  now  produce  trees,  ought  to 
be  given  exactly  the  same  protection  as  existing  forests  receive,  because 
they  often  exercise  a  not  less  important  effect  in  conserving  and  regulat- 
ing stream  flow. 

The  Forest  Service  has  never  recommended  the  creation  of  a  single 
reserve  the  land  inclosed  in  which  can  not  serve  its  main  purpose  either 
by  the  regulation  of  stream  flow  or  by  the  production  of  timber.  No 
considerable  bodies  of  open  range  are  included  in  forest  reserves.  So 
far  as  open  range  is  included,  it  has  been  included  not  as  range  land, 
but  because  it  is  necessary  to  the  protection  of  stream  flow  or  because  it 
is  suitable  for  forest  planting. 

RESERVES  BASED  ON  THOROUGH  EXAMINATION  OF  LANDS 

Mr.  President,  the  Senator  from  Wyoming  [Mr.  Clark]  said  further  — 
and  it  was  a  most  important  charge,  one  that  we  should  carefully  con- 
sider, one  that  the  country  should  know  the  truth  about  —  that  the 
reserves  had  been  created  without  knowledge  of  actual  conditions  upon 
the  ground.  So  far  from  that  being  accurate  (and  I  am  satisfied  that 
neither  the  Senator  nor  any  other  Senator  who  spoke  meant  to  make  an 
inaccurate  statement)  perhaps  as  much  as  in  the  case  of  any  other 
scientific  department  of  the  Government  the  most  careful,  detailed, 
painstaking,  and  scientifically  accurate  examinations  were  made. 


570  AMERICAN   FEDERAL   GOVERNMENT 

These  reserves,  I  say,  are  created  after  the  most  painstaking,  compre- 
hensive, and  scientific  examination  of  conditions  on  the  ground.  If  it 
were  earlier  in  the  day,  I  should  stop  here  first  to  read  to  the  Senate  the 
details  of  the  plan  upon  which  information  is  gathered  for  determining 
whether  or  not  a  forest  reserve  shall  be  made.  None  of  us  could  have 
more  valuable  information  upon  that  subject,  which  is  quite  as  im- 
portant as  any  other  subject  we  now  have  before  us,  than  the  method 
by  which  this  vast  reserved  forest  system,  which  is  the  heart  and  source 
of  all  the  water  for  the  great  irrigation  system,  is  made. 

I  hold  in  my  hand,  and  I  shall  ask  to  have  entirely  inserted  in  the 
Record  in  my  remarks,  the  instructions  to  the  field  men  who  make  the 
examinations. 

The  VICE-PRESIDENT.  In  the  absence  of  objection,  it  will  be  so 
ordered. 

The  matter  referred  to  is  as  follows: 

The  following  outline  must  be  considered  in  the  examination  and  used  in 
writing  the  full  report,  or  it  will  be  returned  for  correction : 

1.  Location  and  area. 

2.  Description  and  topography. 

3.  Climate,  showing  any  difference  between  the  reserve  and  adjacent  agri- 
cultural regions.    Precipitation,  prevailing  rain-laden  winds,  etc. 

4.  The  forest. 

(a)  A  map  on  a  scale  of  2  miles  to  the  inch,  showing  the  distribution  and 
character  of  the  cover  (to  be  compiled  by  the  drafting  division  from  data 
furnished  by  the  examiner).  The  following  classes  of  cover  should  be  distin- 
guished and  mapped: 

1.  Commercial  forest. —  Actual  saw,  stull,  or  tie  timber,  irrespective  of 
its  accessibility.     A  merchantable  forest. 

2.  Timber  land.  —  Land-bearing  commercial  species,  either  reproduction 
under  20  feet  high  or  too  scattering  to  be  a  merchantable  forest.     Potential 
forest  land  capable  of  producing  merchantable  timber. 

3.  Woodland. —  Juniper,  pinon,  oak,  aspen,  etc.,  without  mixture  of  com- 
mercial species.     It  may  be  a  cord-wood  forest. 

4.  Cut-over  land.  —  Wherever  logging  has  been  carried  on,  whether  stripped 
or  merely  culled. 

5.  Burns.  —  Where  the  cover  has  been  totally  destroyed. 

6.  Chaparral. 

7.  Open  grass  land.  —  Parks  or  open  range. 

8.  Sagebrush. 

9.  Cultivated  land. 

10.  Cultivable  land. 

11.  Barren  land. —  Above  timber  line,  slide  rock,  cliffs,  etc. 

(&)  A  brief  description  of  the  various  silvicultural  types  of  forest  cover; 
reproduction. 

(c)  A  rough  estimate  of  the  amount  of  merchantable  timber,  according  to 
watersheds  or  logging  units;  its  accessibility,  and  means  of  logging  that  must 
be  used,  and  prevailing  stumpage  price.  Definite  recommendations  as  to 


LEGISLATIVE   PROBLEMS  571 

stumpage  prices  and  method  of  sale  to  be  pursued  in  the  event  of  creation  of 
the  reserve. 

5.  The  forest  as  a  protection  cover:  Its  effect  on  the  regulation  of  the  water 
flow.    Use  of  water  for  irrigation  and  power  at  present  and  possible  acreage 
and  value  of  irrigated  and  irrigable  lands  dependent  on  the  reserve  for  water 
supply.    Location  of  reservoir  sites  and  possibility  of  ditch  applications.    Any 
areas  or  slopes  from  which  timber  should  not  be  sold. 

6.  Industries:    Nature,   relative   importance,   dependence   on   water  and 
timber  in  proposed  reserve  and  adjacent  affected  regions.    Extent  and  value 
of  most  important  interests. 

7.  Settlements:  Location,  size,  importance,  and  industry.    Table  of  alien- 
ated lands,  showing  area  in  acres  of  each  class  and  per  cent  of  recommended 
reserve. 

8.  Roads,  trails,  and  railroads. 

9.  Lumbering:   Extent  of  lumbering  in  the  past  and  at  present.    Its  effect 
upon  the  forest.     The  condition  of  cut-overlands.     Effect  which  creation  of 
reserve  would  have  upon  lumbering.    Need  for  reserve  timber.    Means  of  sup- 
plying it  from  elsewhere.    Standing  and  retail  prices  of  different  species  in  the 
local  market. 

10.  Grazing:   To  what  extent  the  prosperity  of  the  local  residents  depends 
upon  live  stock,  and  to  what  extent  is  the  stock  dependent  on  this  range.    How 
many  stock  now  using  reserve  and  how  distributed.    Where  owned.    Whether 
stockmen  own  ranches  or  reside  in  reserve. 

To  what  extent  as  a  summer  range  proposed  reserve  limits  use  outside 
range.  Whether  it  includes  lambing  grounds.  Conflicting  interests,  such  as 
between  sheep  and  cattle,  local  and  outside  stock,  etc.  Merits  of  the  con- 
troversy. 

Description  of  pasture  lands,  their  nature,  brush,  grass,  etc.  Extent  of 
open  parks  and  pasture  in  timber.  To  what  extent  grazing  has  injured  the 
range  or  forest.  Manner  of  handling.  Size  of  herds. 

Areas,  if  any,  from  which  stock  should  be  excluded.  Division  of  pasture 
lands.  Give  plan,  number  to  be  allowed,  length  of  season,  any  special  regula- 
tion necessary.  Practicability  of  a  division  of  range  into  individual  ranges. 
Necessity  for  counting  wings,  drift  fences,  dipping  vats,  windmills,  etc.  Cost 
and  location. 

11.  Fire:   Damage  from  fire;   usual  causes.    Threatened  points.    Season. 
History  of  burns.    Prevention.    Area  burned.    Outline  a  definite  plan  of  pro- 
tection and  patrol.     Are  fire  lines  feasible? 

12.  Situation.    A  brief  description  of  the  political  and  economic  situation 
of  the  locality  (settlements,  county,  or  State)  in  its  bearing  on  the  reserve 
question.    From  whom  will  opposition  come  and  why?    Attitude  and  motives 
of  influential  men  or  corporations.    Any  illegal  settlements  or  operations.   Any 
concessions  that  the  Forest  Service  should  make.    Labor  prices  and  cost  of 
living  in  the  surrounding  communities. 

13.  Local  sentiment  in  regard  to  the  creation  of  a  forest  reserve:  A  special 
effort  should  be  made  to  obtain  all  arguments  possible  both  for  and  against 
the  creation  of  a  reserve. 

14.  Conclusion  and  recommendations:    A  clear  recommendation  for  or 
against  the  creation  of  a  reserve. 

15.  If  recommended,  boundaries  to  be  shown  on  maps  in  red  pencil.    If  not, 


572  AMERICAN   FEDERAL   GOVERNMENT 

write  "not  recommended"  in  red  pencil  on  the  map  and  on  the  title  page  of  the 
report. 

16.  Administration.  Number  of  men  needed  to  handle  current  business. 
Ranks  and  rates  of  pay.  Length  of  service.  How  many  men  in  summer  ?  In 
winter?  Indicate  ranger  districts  on  map  where  ranger  should  be  stationed 
in  each  district. 

In  what  town  should  the  officer  in  charge  make  his  headquarters.  What  are 
office,  mail,  railroad,  telegraph,  and  telephone  facilities  there.  Regions  where 
patrol  is  most  needed.  Where  sales,  free  use,  trespass,  and  privilege  cases  will 
be  numerous.  Improvement  work,  such  as  cabins,  phones,  pastures,  roads,  or 
trails  necessary  at  once  and  cost  of  each.  Special  regulations  desirable,  not  in 
present  rules.  Revision  of  present  rules  or  practice. 

The  administrative  feature  is  a  very  important  one,  and  complete  plan  of 
administration  for  the  proposed  reserve  should  be  outlined. 

Names  and  addresses  of  men  who  would  make  good  forest  officers. 

The  importance  of  photographs  can  not  be  overestimated.  They  should  be 
taken  to  illustrate  particular  points  in  the  reports.  Also  views  over  consider- 
able areas,  showing  the  general  character  of  the  country  should  be  taken. 

Mr.  BEVERIDGE.  Furthermore,  I  have  here,  and  will  exhibit  that  the 
Senate  may  see  it,  a  map  of  the  Shoshone  or  Coeur  d'Alene  Reserve  in 
Idaho.  The  Senate  will  notice  the  various  colors.  This  deep  green  here 
[indicating]  in  the  southwest  portion  is  the  heavily  forested  portion  of 
this  reservation.  These  brown  patches  [indicating]  throughout  that 
reservation  are  the  burnt-over  districts,  where  millions  of  dollars,  the 
property  of  the  United  States,  has  been  destroyed  by  forest  fires.  The 
lighter  portions  here  [indicating]  are  the  young  timber.  There  are  other 
portions  that  represent  sagebrush. 

With  reference  to  this  green  portion  here  [indicating],  within  these 
lines,  heavily  wooded,  it  is  nearly  all  taken  up  by  the  State  or  by  settlers. 
That  is  the  "ruthless"  and  "infamous"  way  in  which  the  Government 
of  the  United  States  has  destroyed  the  resources  of  the  State,  as  Senators 
have  charged. 

TIMBER  FREE  TO  SMALL  USERS  FOR  HOME   BUILDING  AND  OTHER 

NEEDS 

Mr.  President,  having  located  a  reserve,  what  occurs?  In  the  first 
place,  it  is  again  carefully  mapped,  classified,  and  examined.  The 
Department  knows  just  exactly  what  kind  of  timber  is  in  every  part  of 
the  reserve.  What  is  done  with  that  timber  ?  Two  things  are  done  with 
it.  It  is  given  away  by  the  Government  to  the  small  users  without 
charge  —  to  the  settler,  to  the  homesteader,  to  those  men  that  we  have 
been  led  to  believe  were  so  badly  treated  by  this  "tryannical"  Govern- 
ment —  and  who  with  this  timber  build  their  homes.  Lumber  and 
timber  are  given  free  of  charge.  Not  only  is  the  place  to  build  their  homes 
given  them,  but  all  the  timber  they  need. 


LEGISLATIVE   PROBLEMS  573 

In  order  to  show  how  fairly  and  with  what  careful  detail  the  law  pro- 
viding for  the  free  use  of  timber  and  stone  is  applied,  I  will  quote  the 
regulation  in  this  respect: 

"Regulation  10.  The  free-use  privilege  may  be  granted  to  settlers, 
farmers,  prospectors,  or  similar  persons  who  may  not  reasonably  be 
required  to  purchase,  and  who  have  not  on  their  own  lands  or  claims, 
or  on  lands  controlled  by  them,  a  sufficient  or  practicably  accessible  sup- 
ply of  timber  or  stone  for  the  purposes  named  in  the  law.  It  may  also 
be  granted  to  school  and  road  districts,  churches,  or  cooperative  organi- 
zations of  settlers  desiring  to  construct  roads,  ditches,  reservoirs,  or 
similar  improvements,  for  mutual  or  public  benefit.  Free  use  of  material 
to  be  used  in  any  business  will  be  refused,  as,  for  example,  to  sawmill 
proprietors,  owners  of  large  establishments  or  commercial  enterprises, 
and  companies  or  corporations.  The  free-use  privilege  will  not  be  given 
to  any  trespasser." 

TIMBER  SOLD  so  THAT  FOREST  is  CONSERVED 

Next  certain  timber  is  sold,  and  to  whom?  To  those  who  wish  it, 
whether  in  small  or  in  large  quantities;  not  for  their  own  use,  but  for 
commercial  purposes.  Ought  the  Government  give  it  to  them?  Hereto- 
fore men  have  made  millions  sawing  into  lumber  the  timber  that  belonged 
to  the  people  of  this  Nation.  Shall  we  return  to  that  policy? 

Now,  then,  what  timber  is  sold? 

I  will  come  in  a  moment  to  the  question  of  policy  that  was  raised  as 
to  "the  Government  being  a  merchant." 

Not  only  is  what  is  known  as  "down"  timber,  to  which  the  Senator 
from  Wisconsin  [Mr.  Spooner]  referred  yesterday,  sold,  but  what  is 
called  "ripe"  timber  is  sold. 

Mr.  SPOONER.    I  said  that. 

Mr.  BEVERIDGE.  I  did  not  hear  the  Senator  when  he  said  it.  Perhaps 
I  had  been  called  out  of  the  Chamber.  Then  the  Senator  did  cover  that. 
The  truth  about  it  is  that  these  forest  reserves  are  merely  great  natural 
wood  factories,  and  unless  reserves  are  so  treated,  and  trees  cut  that 
should  be  cut  and  when  they  should  be  cut  the  result  is  bad  to  the  forest 
itself.  It  is  blown  down,  it  rots,  and  is  itself  a  source  of  decay.  What 
shall  the  Government  do  ?  Let  it  fall  and  let  it  rot  ?  It  is  the  Govern- 
ment's property,  just  as  much  as  the  chairs  in  this  Chamber;  just  as 
much  as  the  money  we  seem  to  be  so  afraid  to  appropriate  is  Government 
property. 

The  prime  object  of  the  forest  reserves  is  use.  While  the  forest  and  its 
dependent  interests  must  be  made  permanent  and  safe  in  preventing 
overcutting  or  injuring  the  young  growth,  every  reasonable  effort  is 
made  to  satisfy  legitimate  demands.  Timber  cut  from  forest  reserves 
may  be  handled  and  shipped  like  any  other  timber,  except  that  it  is  not 


574  AMERICAN   FEDERAL   GOVERNMENT 

sold  for  shipment  in  regions  where  local  construction  requires  the  entire 
supply,  or  is  certain  to  do  so  in  the  future.  Anyone  may  purchase  timber 
except  trespassers.  Forest  rangers  are  authorized  to  sell  timber  in 
amounts  not  exceeding  $20  in  value;  forest  supervisors  not  more  than 
$100  worth,  and  the  Forester  larger  sales. 

We  talk  about  " economy."  Economy  of  what?  Of  the  Govern- 
ment's resources,  and  those  resources  consist  in  cash,  in  land,  in  trees, 
in  ships,  in  anything  else  that  the  Government  owns.  So,  if  we  are  con- 
serving these  trees,  and  derive  revenue  from  them,  we  are  practicing  the 
highest  economy  just  as  much  as  if  we  are  careful  —  and  we  should  be 
careful  —  of  the  actual  dollars  appropriated. 

So  that,  Mr.  President,  is  what  is  done  with  that  wood,  and  that  is 
not  only  bringing  a  revenue  into  the  Treasury,  but  it  is  creating  a  con- 
tinuous revenue  from  the  same  source  for  the  future.  I  ask  any  Senator 
who  objects  to  the  Government  being  a  "  merchant,"  as  we  have  heard, 
whether  or  not  any  Administration  could  be  justified  in  not  saving  to 
the  people  of  the  United  States  the  revenue  that  comes  from  the  sale  of 
this  timber.  What  else  would  you  do  with  it? 

Would  you  give  to  one  man  to  receive  freely  and  sell  for  his  own 
profit  the  timber  for  which  another  man  stands  ready  to  pay  two  or 
three  or  five  dollars  a  thousand  feet  —  millions  upon  millions  of  feet 
of  it  ?  For  there  is  no  other  choice  than  this  —  either  some  favored 
individual  or  the  people  of  the  United  States  must  receive  the  benefit. 
Under  sales  already  made  the  Government  will  receive  hundreds  of 
thousands  of  dollars.  The  timber  sold  cannot  be  removed  except  in 
large  quantities ;  expensive  plants  must  be  provided  to  make  it  possible 
to  utilize  the  timber  at  all.  Should  the  Government  abstain  from  re- 
ceiving this  revenue  that  some  private  individual  may  gratuitously  reap 
a  fortune?  If  so,  on  what  principle  shall  selection  of  the  person  to 
receive  this  princely  favor  be  made? 

TECHNICAL  INVESTIGATIONS  ADD  TO  COUNTRY'S  WEALTH 

But  this  is  not  all,  Mr.  President,  nor  is  it  perhaps  the  most  important 
thing.  We  are  developing  this  country,  developing  its  resources.  I 
very  greatly  doubt  whether  we  have  had  any  source  of  tangible  wealth 
to  the  people  so  great  as  the  aid  that  has  been  given  the  people  in  infor- 
mation, scientific  direction,  and  help  by  the  department  of  Agriculture. 
An  entire  day  might  be  most  usefully  spent,  both  so  far  as  the  people 
and  the  Senate  are  concerned,  in  reviewing  the  actual  practical  help  to 
the  people  by  the  information  that  is  gathered  and  given  to  the  farmers 
of  the  country  by  the  Department  of  Agriculture. 

So  the  next  thing  the  Forest  Service  does  is  to  constantly  test  the  trees 
and  the  various  kinds  of  wood  for  new  uses.  It  is  found  that  some 
woods  which  formerly  were  supposed  to  be  worthless  are  most  valuable ; 


LEGISLATIVE   PROBLEMS  575 

so  that,  as  one  kind  of  timber  is  cut  off  and  the  lumber  disappears  an- 
other kind  of  timber  is  found. 

I  cite  as  examples  of  that  two  trees  with  which  some  Senators  here 
will  be  especially  familiar.  One  is  the  western  hemlock  and  the  other 
the  southern  gum.  The  southern  gum  was  a  tree  which  afforded  excel- 
lent lumber,  but  which  immediately  warped,  so  that  the  stock  expression 
of  a  lumberman  was  that  if  you  were  to  go  to  sleep  on  one  side  of  a 
southern  gum  board  you  would  wake  up  next  morning  on  the  other  side 
of  it,  because  it  would  warp  so.  But  the  Department  has  found  a 
method  of  cutting  and  treating  it  so  that  it  has  become  one  of  the  con- 
siderable resources  of  the  States  where  it  grows.  It  has  taken  the  place 
of  wood  which  heretofore  was  used  almost  exclusively,  but  which  now 
has  become  practically  exhausted,  just  because  we  did  not  have  such 
forest  preservation  as  is  now  proposed. 

Another  is  the  western  hemlock.  Up  to  a  few  years  ago  the  western 
hemlock  was  supposed  to  be  like  the  eastern  hemlock,  unfit  for  lumber. 
This  Department  has  developed  the  fact  that  it  makes  an  admirable 
lumber;  and  now  it  constitutes  a  source  of  real  revenue  to  the  States 
where  it  grows. 

The  Forest  Service  is  active  in  finding  new  uses  for  sawmill  waste; 
testing  new  woods  to  be  used  for  paper  in  place  of  those  which  are  be- 
coming exhausted  or  too  expensive ;  testing  new  woods  for  mine  props, 
railroad  ties,  box  boards,  vehicle  woods,  wooden  pavements,  cooperage, 
and  many  other  uses.  It  is  studying  methods  of  preserving  woods  against 
decay,  and  is  thus  increasing  enormously  the  service  that  can  be  got  out 
of  wood  in  some  of  its  commonest  uses.  In  this  one  field  its  work  is 
equivalent  to  increasing  the  timber  resources  of  the  country  by  creating 
out  of  nothing  thousands  and  hundreds  of  thousands  of  acres  of  stand- 
ing forest.  Both  by  promoting  economy  in  the  use  of  wood  and  by  pre- 
venting waste  in  harvesting  the  forest  crop  it  has  added  millions  of 
dollars'  worth  of  material  to  the  national  wealth  in  private  ownership. 

Mr.  President,  that  is  not  only  creating  wealth  for  the  Government  as 
such,  but  it  is  creating  wealth  for  the  people,  because,  of  course,  most 
everybody  knows  that  most  of  the  forest  land  of  the  United  States  is 
held  by  private  owners.  I  think  perhaps  less  than  one-fifth  —  the 
Senator  from  Wyoming  may  know  about  that,  and  I  want  to  be  cor- 
rected if  the  statement  is  wrong,  and  that  it  is  too  high,  if  anything  —  is 
held  in  Government  reserves. 

Mr.  CLARK  of  Wyoming.     It  is  very  much  too  low. 

Mr.  BEVERIDGE.  You  mean  that  much  more  than  the  amount  I 
named  is  held  by  private  owners? 

Mr.  CLARK  of  Wyoming.     Yes. 

Mr.  BEVERIDGE.  I  think  that  very  much  more  than  I  have  stated  is 
held  by  private  individuals,  but  the  private  owners  do  not  and  can  not, 
unless  they  operate  upon  a  scale  almost  as  great  as  the  Government 


576  AMERICAN  FEDERAL  GOVERNMENT 

itself,  make  these  scientific  examinations  which  discover  the  unknown 
properties  of  their  wood.  So  in  this  one  way  the  Department  is  creating 
enormous  wealth  for  the  American  people. 

Mr.  CLARK  of  Wyoming.  Right  on  that  point,  will  the  Senator  allow 
me  a  question  as  to  the  scientific  work  of  the  Bureau? 

The  VICE-PRESIDENT.  Does  the  Senator  from  Indiana  yield  to  the 
Senator  from  Wyoming? 

Mr.  BEVERIDGE.     Certainly. 

Mr.  CLARK  of  Wyoming.  Is  it  not  a  fact  that  nearly  all  of  the  scien- 
tific experiments  of  the  kind  to  which  the  Senator  is  referring  are  con- 
ducted by  the  private  owners,  and  that  nearly  all  these  experiments  are 
made  upon  private  timber  lands  ?  I  ask  him  if  that  is  not  the  general 
fact. 

Mr.  BEVERIDGE.  No;  not  all  of  them  by  any  manner  of  means. 
I  understand  the  fact  to  be — 

Mr.  CLARK  of  Wyoming.  I  did  not  say  all  of  them;  I  said  pretty 
generally  the  experiment  was  not  a  united  experiment  between  the 
private  owner  of  the  timber  and  the  Government. 

COOPERATION  WITH  PRIVATE  OWNERS  AND  INDUSTRIES 

Mr.  BEVERIDGE.  I  understand  the  fact  to  be  —  and  I  desire  to  get 
it  right  and  I  will  put  it  in  the  Record  right  if  I  do  not  get  it  correct 
now,  because  we  are  trying  to  get  information  and  we  have  no  pride  of 
opinion,  and  if  any  of  us  find  that  we  have  made  a  mistake  we  are  all 
equally  willing  to  admit  it  —  I  understand  the  fact  to  be  about  these 
experiments  that  they  are  conducted  to  ascertain  the  best  uses  of  timber 
on  the  Government's  forest  lands,  and  also  the  best  uses  of  timber  on  the 
lands  of  private  owners.  Where  any  private  owner  of  forest  land  de- 
sires to  test  his  wood,  the  Government  cooperates  very  cheerfully,  and 
even  invites  such  cooperation.  I  am  sure  that  every  Senator  here,  no 
matter  what  may  be  his  opinion  upon  any  other  subject,  would  approve 
that  plan  as  a  wise  and  common-sense  thing. 

In  addition  to  cooperative  work  in  timber  tests,  the  Forest  Service 
gives  advice  and  assistance  to  private  owners  of  timber  lands  all  over 
the  country.  Unless  these  forests  also  are  preserved,  a  timber  famine 
not  less  dangerous  than  a  coal  famine  is  in  sight.  Applications  for  help 
of  this  kind  come  from  both  owners  of  small  wood  lots  and  holders  of 
large  timber  tracts.  What  are  called  "  working  plans  "  are  made;  that 
is,  certain  rules  are  recommended  for  the  proper  protection,  management, 
and  utilization  of  the  timber,  to  the  end  that  the  owner  may  be  assured 
of  a  continuous  supply  of  wood,  at  the  same  time  cutting  what  is  neces- 
sary for  present  needs. 

The  object  of  the  wood-lot  work  is  to  give,  free  of  cost  to  farmers  and 
other  small  owners,  advice  and  assistance  in  the  improvement  and  use 


LEGISLATIVE   PROBLEMS  577 

of  their  woodlands.  The  cooperative  work  on  large  timber  tracts  em- 
braces the  whole  country,  and  in  many  cases  the  plans  recommended  by 
the  Forest  Service  are  now  actually  being  carried  out  very  successfully. 

Cooperative  work  is  also  undertaken  with  the  various  States,  and 
this  branch  of  the  work  has  been  taken  up  with  the  greatest  detail  in 
California. 

So,  Mr.  President,  we  see  what  the  Department  is  doing.  I  am  trying 
to  forward  the  work  as  much  as  possible.  Of  course  there  is  a  tremen- 
dous and  far-reaching  and  deeply  founded  policy  beneath  it  which  I 
stated  in  the  beginning,  and  that  is  the  prevention  of  that  portion  of  this 
country  —  and,  if  we  could,  of  every  portion  of  this  country  —  from 
continuing  a  desert  or  being  made  into  one  if  it  is  not  one  already.  We 
are  in  a  great  work  —  and  how  characteristically  American  it  is  —  the 
work  of  reclaiming,  of  saving,  of  developing,  of  making  two  blades  of 
grass  grow  where  none  grew  before.  We  have  passed  the  period  of 
destruction.  We  have  abandoned  that  ruinous  exploitation  which  was 
called  "development,"  but  was  the  reverse.  We  are  replacing  as  fast 
as  we  can  those  gigantic  resources  which,  in  the  strength  and  in  conse- 
quence of  our  national  youth,  we  so  ruthlessly  and  thoughtlessly  de- 
stroyed. It  is  a  great  constructive  policy  designed  to  create  conditions 
that  will  supply  homes  for  hundreds  of  thousands  and  millions  in  the 
near  future  and  even  a  denser  population  in  the  more  distant  future. 

RESERVES  NATURAL  FOREST  LAND 

I  come  now  to  a  statement  made  —  and  it  was  an  illustrative  state- 
ment —  yesterday  afternoon  by  the  Senator  from  Colorado  [Mr.  Pat- 
terson] —  and  I  am  sorry  that  he  is  not  in  his  seat.  But  the  Senate  has 
heard  him  —  and  I  think  possibly  one  or  two  other  statements  were 
made  like  it.  The  Senator  from  Colorado  yesterday  described,  with 
that  vigorous  eloquence  which  so  characterizes  him  and  charms  us  all, 
the  establishment  in  Colorado  of  a  great  reserve,  larger,  he  said,  than 
some  States,  without  a  single  tree  upon  it  or  any  tree  ever  having  grown 
upon  it.  I  took  pains  to  look  up  the  fads  as  to  that  statement;  and 
what  are  the  facts? 

It  is  true,  in  part,  Mr.  President,  that  such  a  reserve  has  been  taken 
up  so  far  as  the  existing  trees  are  concerned.  But  it  was  originally  land 
every  foot  of  which  was  covered  with  magnificent  woods  which  have 
Jong  since  been  burned  away  until  parts  of  the  mountains  —  and  it  is 
a  mountain  region  —  where  that  reserve  is  are  as  bare  of  trees  as  three 
mountains  I  saw  in  the  States  of  Colorado  and  California  —  though 
they  were  bare  from  a  different  cause  —  as  the  surface  of  this  desk. 
But  it  is  natural  forest  land.  It  is  ideal  for  reforesting;  it  is  being  re- 
forested. But  the  reforesting  is  impossible  if  all  the  herds  and  all  the 
flocks  of  Colorado  belonging  to  her  great  cattle  and  sheep  kings  and 

37 


578  AMERICAN   FEDERAL   GOVERNMENT 

princes  —  and  I  have  no  objection  to  them ;  I  should  like  to  be  a  king 
of  that  kind  myself  —  are  allowed  to  pasture  over  that  reserve  at  will  and 
without  control  as  well  as  without  charge. 

Mr.  President,  it  was  held  out  by  intimation,  if  not  by  direct  state- 
ment, that  this  land  was  fit  for  agricultural  purposes  and  that  the  policy 
of  the  Department,  therefore,  had  been  to  despotically  take  a  principal- 
ity in  size,  where  no  trees  grew,  and  keep  off  the  "sweeping  tide  of 
immigrants  "  from  " founding  homes."  The  fact  is  that  it  is  above  the 
agricultural  line  where  homes  are  not  "founded,"  and  "immigrants" 
do  not  "pour  in  tides  "  or  "pour  "  in  any  other  way.  Most  of  it  is  over 
8,000  feet  above  the  sea  level,  where  farms  are  not  practicable,  except, 
I  believe,  a  certain  kind  of  farming,  which  is  not  worth  taking  into 
account.  It  is  one  of  nature's  natural  forest  reservoirs  of  water  for  the 
purpose  of  distributing  that  water  for  the  uses  of  the  people  where  the 
land  farther  down  is  agricultural. 

What  exists  with  reference  to  that  land  now  is  this :  It  is  grown  over 
with  grasses;  those  grasses  are  good  for  grazing,  and  over  that  great 
extent,  which  belongs  to  the  Government  of  the  United  States,  the 
stockmen  and  the  sheep  men  of  Colorado  have  been  fattening  their 
herds.  And  they  ask  to  do  it  still  more  —  and  that,  too,  without  pay- 
ing the  Government  a  dollar. 

RESERVES  NOT  UNPEOPLED  SOLITUDES 

Let  us  bear  in  mind  the  actual  conditions.  A  forest  reserve  contains 
lands  "chiefly  valuable  for  timber."  Yet  if  the  farmer  finds  up  and 
down  some  valley  that  creeps  back  into  these  mountains  a  site  for  set- 
tlement, it  is  open  to  him  as  much  as  any  other  part  of  the  public  do- 
main, if  he  enters  in  good  faith.  The  reserves  have  been  pictured  as 
vast  stretches  of  unbroken  wilderness,  empty  solitudes  trod  only  by  the 
forester.  In  point  of  fact,  they  contain  thousands  of  ranches;  they 
contain  hamlets,  villages,  and  towns,  to  say  nothing  of  lumber  camps 
and  railroad  construction  camps  and  mining  camps.  Wherever  signs 
of  mineral  can  be  found  the  prospector  stakes  out  his  claim.  In  summer 
they  are  alive  with  those  who  resort  thither  for  health  and  recreation  — 
50,000  of  them  in  one  season  in  southern  California  alone  —  and  with 
the  cowboys  and  sheep  herders,  who  guard  and  care  for  the  7,000,000 
head  of  animals  that  last  year  grazed  in  the  forest  reserves. 

BENEFITS  or  REGULATED  GRAZING 

These  forests  of  the  West  are  unlike  those  of  the 'East.  They  are 
often  open  and  park  like,  with  forage  plants  growing  beneath  the  trees. 
These  grasses,  like  the  trees  themselves,  will  be  wasted  if  they  are  not 
used.  For  this  reason  the  Forest  Service  permits  grazing  in  the  reserves, 


LEGISLATIVE    PROBLEMS  579 

but  in  every  case  is  careful  to  exclude  grazing  from  areas  in  which  it  has 
been  found  harmful.  For  example,  grazing  is  not  permitted  in  forests 
"  under  reproduction,"  as  the  Forester  speaks  of  it  —  that  is,  forests 
in  which  cuttings  are  in  progress  to  invite  young  growth.  Forest  re- 
serves have  never  been  created  out  of  lands  which  are  merely  grazing 
lands.  Yet  this  resource  is  like  the  forest  in  that  it  may  be  greatly 
impaired  and  even  destroyed  by  unwise  use.  Unrestricted  admittance  of 
all  stock  would  bring,  and  in  many  cases  has  brought,  a  decline  in  the 
number  which  the  range  would  support.  By  licensing  only  so  many 
head  as  the  range  can  well  support  the  Forest  Service  has  proved  to  the 
satisfaction  of  the  stockmen  themselves  that  the  carrying  power  of  the 
range  season  after  season  is  actually  increased. 

It  was  said  that  this  was  the  crowning  "  infamy  "  of  the  Department, 
that  the  Department  actually  charged  a  ''license  fee"  before  any  of 
these  men  were  permitted  to  graze  their  cattle.  I  ask  the  Senate  what 
else  could  the  Government  do?  Ought  the  Government  to  give  that 
privilege  to  the  cattle  and  the  sheep  men,  and  if  the  Government  ought 
not  to  give  it  to  them  can  anybody  imagine  a  safer  or  more  practicable 
system  of  charging  than  the  permit  system? 

RESPONSIBILITY  FOR  LIEU  LAND  ABUSES 

Now  I  come  to  the  question  of  lieu  land.  I  thought  when  I  heard 
the  Senator  from  Oregon  make  his  charge  the  other  day  that  he  made  a 
very  serious  charge,  and  when  it  was  renewed  by  the  Senator  from 
Montana  it  appeared  to  me  even  grave.  I  knew  that  neither  one  of  those 
Senators  would  make  such  a  charge  as  that  thoughtlessly.  I  have  looked 
it  up,  and,  in  my  opinion,  that  charge  is  entirely  true. 

I  think  it  is  entirely  well  founded,  and  after  my  investigation  I  think 
the  language  of  the  Senator  from  Montana,  which  I  thought  at  the  time 
was  severe,  is  entirely  justified,  when  he  said  that  the  relations  of  the 
Department  at  one  time  with  the  land-grant  railroads  would  bear 
looking  into. 

I  find  that  it  is  true,  as  the  Senator  from  Oregon  described,  that  large 
tracts  of  land  in  Washington  which  were  worthless  had  been  released 
and  lieu  lands  taken  up  in  valuable  portions  of  Oregon.  But  what  has 
this  Bureau  to  do  with  that?  What  are  the  facts?  Let  us  be  just  to 
everybody.  Nobody  intends  to  accuse  any  man  falsely  nor  condemn 
any  man  unjustly.  The  truth  is  that  was  done  under  a  construction  of 
the  law  by  the  Land  Office  some  years  ago,  and  one  of  the  first  objections 
to  it  that  was  made  within  the  Government  itself  was  made  by  the  Bureau 
of  Forestry  and  personally  by  Gifford  Pinchot,  the  Chief  Forester. 

The  Senator  from  Minnesota,  who  was  most  active  in  repealing  that 
law  to  which  a  false  meaning  had  been  given  by  this  construction  of  the 
Land  Office  will  bear  me  out  in  that. 


580  AMERICAN  FEDERAL   GOVERNMENT 

Mr.  CARTER.     Will  the  Senator  permit  an  interruption  ? 

Mr.  BEVERIDGE.     I  will. 

Mr.  CARTER.  The  situation  of  which  complaint  is  made  presented 
this  aspect,  to  wit :  This  Government  owned  large  areas  of  very  valuable 
timber  land.  The  ownership  of  the  Government  over  the  land  was 
undisputed.  The  superb  character  of  the  timber  growing  upon  the  land 
no  one  questioned  and  everybody  knew.  That  character  of  land  was 
not  included  in  forest  reservations  until  a  lot  of  destitute,  barren  land  in 
Arizona  and  elsewhere  had  been  included  in  forest  reserves  —  land 
which  at  the  time  of  such  inclusion  was  largely  in  the  ownership  of 
railroad  companies,  and  that  private  ownership  of  these  barren  lands 
gave  to  the  railroad  companies  the  right  to  exchange  the  barren  lands 
for  the  superb  timber  lands  to  which  I  referred. 

Now  permit  me  to  ask  why  these  great,  superb,  and  valuable  timber 
lands  were  not  first  withdrawn  as  forest  reservation,  so  as  to  be  protected 
from  the  rapacious  grasp  of  the  land-grant  railroad,  seeking  lieu  land 
for  its  trifling  land  in  Arizona  and  elsewhere  ? 

Mr.  BEVERIDGE.  The  original  fault  was  in  Congress,  which  made 
the  law  capable  of  the  construction  the  Land  Department  put  upon  it. 

Mr.  CARTER.     Mr.  President  — 

Mr.  BEVERIDGE.  Let  me  answer  your  question.  The  secondary 
fault  was  in  the  Land  Department  for  putting  that  construction  upon  it 
and  the  remedy  for  which  —  and  let  us  spend  no  more  time  on  that  point, 
because  the  Senator  ought  generously  to  admit  it  —  was  suggested  by 
the  present  Chief  of  the  Bureau.  So  the  fault,  whatever  there  is,  lies 
with  us. 

Mr.  CARTER.  Will  the  Senator  inform  us  now  why  it  was,  when  this 
great  body  of  splendid  timber  land  was  in  peril,  the  power  of  the  Gov- 
ernment was  not  exercised  to  protect  it  by  withdrawing  it  and  put- 
ting it  in  a  forest  reserve,  and  thus  beyond  the  grasp  of  the  lieu-land 
speculator  ? 

Mr.  BEVERIDGE.  That  has  been  a  long  time  ago,  and  was  because 
of  the  law  which  we  ourselves  had  passed 

Mr.  CARTER.     Mr.  President 

Mr.  BEVERIDGE.  Now  pardon  me.  I  have  gone  over  this  two  or 
three  times  —  and  which  this  Bureau,  and  the  head  of  this  Bureau  as 
one  of  this  Commission,  was  the  first  to  suggest  the  correction  of. 

Mr.  CARTER.  But  the  law  which  allowed  poor  land  to  be  withdrawn 
certainly  allowed  good  timber  land  to  be  likewise  withdrawn.  Why  was 
not  the  good  land  withdrawn  first  ? 

Mr.  FLINT.     Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Indiana  yield  to  the 
Senator  from  California? 

Mr.  BEVERIDGE.     Certainly. 

Mr.  FLINT.     I  would  like  to  ask  a  question  of  the  Senator  from 


LEGISLATIVE   PROBLEMS  581 

Montana.  How  long  was  it  after  the  Secretary  of  the  Interior  had  made 
the  ruling  he  has  mentioned  before  Congress  acted  and  repealed  the 
statute  permitting  the  selection  of  good  lands  for  the  bad  lands 
surrendered  ? 

Mr.  CARTER.  From  the  very  beginning  it  was  within  the  power  of 
the  Interior  Department  to  protect  all  the  valuable  timber  land  in  the 
United  States  by  including  it  in  a  forest  reserve  before  any  barren  land 
at  all  was  put  in  a  forest  reserve.  The  policy  pursued  was  to  put  the 
barren  land  in  forest  reservations  first  and  leave  the  superb  timber  land 
open,  to  be  taken  in  exchange  for  the  base  lands  in  the  forest  reserves. 

Mr.  BEVERIDGE.  If  that  was  the  policy,  it  never  has  been  the  policy 
under  the  present  administration  of  the  office. 

Mr.  CARTER.  I  refer  to  things  done  and  not  to  policy.  I  refer  to 
accomplished  facts  and  public  records  and  not  to  chimerical  policies  or 
uncertain  data. 

Mr.  BEVERIDGE.  That  is  rhetoric,  but  as  a  matter  of  fact  the  Senator 
must  be  as  fair  to  me  as  I  was  to  him  and  admit,  and  not  only  admit, 
but  gladly  assert,  and  I  know  the  Senator  will,  that  none  of  the  things 
of  which  the  Senator  complains  had  its  source  in  the  present  administra- 
tion of  the  Forestry  Bureau. 

Mr.  CARTER.  I  admit  that  Mr.  Pinchot  complained  early  and 
earnestly  of  the  law. 

Mr.  BEVERIDGE.     Yes. 

Mr.  CARTER.     I  place  the  responsibility  where  I  think  it  belongs 

Mr.  BEVERIDGE.     That  is  right. 

Mr.  CARTER.  On  the  shoulders  of  those  who  so  connived  with  the 
construction  of  this  law  as  to  pass  to  the  land-grant  railroads  the  splen- 
did timber  lands  of  Washington,  Idaho,  and  western  Montana  in  ex- 
change for  chaparral  land  in  Arizona. 

Mr.  BEVERIDGE.     I  heartily  agree  with  the  Senator. 


EFFECTIVE  ADMINISTRATION  OF  THE  NATIONAL  FORESTS 

Mr.  President,  I  have  examined  briefly  the  policy,  the  three  grounds 
of  public  good  upon  which  this  whole  forest-reserve  system  rests.  Now 
as  to  the  question  of  administration,  by  which  we  mean  the  manage- 
ment of  the  reserves,  it  includes  several  things.  After  the  reserves  have 
been  located  in  the  painstaking  way  they  are,  as  I  have  shown  here  by 
these  maps  and  by  the  instructions  to  the  locators  of  reserves,  they  are 
remapped.  They  are  classified  as  to  trees.  There  is  now  under  the 
actual  practical  administration  of  this  Bureau  128,000,000  acres,  I  be- 
lieve. The  Senator  from  Montana  will  correct  me  if  I  am  wrong. 

Mr.  CARTER.    One  hundred  and  twenty-seven  million  acres. 

Mr.  BEVERIDGE.  One  hunderd  and  twenty-seven  million  acres.  Now, 
through  that  runs  a  great  system  of  forest  patrol.  It  is  policed  by  a 


582  AMERICAN   FEDERAL   GOVERNMENT 

network  of  forest  rangers.  One  Senator  yesterday  referred  to  the  fact 
that  the  examination  of  the  land  could  not  have  been  thorough,  because 
one  man  had  gone  over  4,000,000  acres  in  two  weeks.  Was  it  not  that  ? 
It  was  something  like  that,  in  any  event,  Mr.  President.  What  does  that 
mean  ?  Merely  that  instead  of  cutting  down  the  appropriation  for  the 
proper  care  of  the  reserves  it  ought  to  be  increased.  As  a  matter  of  fact, 
the  forest  policing  is  very  careful,  thorough,  systematic.  They  police 
the  forests,  and  I  will  tell  in  a  minute  what  that  means.  If  any  man 
thinks  that  a  forest  police  is  not  valuable,  I  shall  show  in  a  moment  that 
there  is  no  individual  service  in  this  Government  that  is  more  valuable  or 
more  delicate. 

This  policing  is  done  by  the  rangers  —  900  of  them  employed  last 
year  to  patrol  100,000,000  acres  of  land  —  one  ranger  to  110,000  acres, 
or  172  square  miles.  In  the  highly  profitable  forests  of  Prussia  there  is 
one  forest  guard  on  the  average  to  every  1.7  square  miles.  Small  wonder 
that  the  cost  of  administration  in  the  United  States  in  spite  of  the  higher 
scale  of  wages  has  been  kept  below  that  of  any  other  European  country 
except  Russia. 

The  Forest  Service  is  now  expending  annually,  in  administering  the 
reserves,  1.6  cents  per  acre.  Doubtless  it  should  spend  more,  and  must 
spend  more  as  use  of  the  reserves  increases,  for  wise  use  means  super- 
vision and  supervision  means  expense.  Every  live  tree  that  is  cut  on 
the  reserves  is  first  marked  by  the  forest  ranger's  axe ;  every  log  that  is 
used  is  scaled;  and  this  is  but  one  of  their  many  duties,  which  include 
guarding  the  range  against  trespass  and  the  forests  against  fire.  And  all 
this  with  one  ranger  to  172  square  miles !  It  needs  no  further  evidence 
to  show  that  these  are  not  invalids,  or  Eastern  tenderfeet,  or  college-bred, 
impractical  theorists.  They  are  men  of  the  West,  woodsmen,  cowboys, 
lumberjacks  —  men  who  can  ride  the  mountain  trails  and  live  a  frontiers- 
man's life.  As  to  their  efficiency,  the  record  of  forest  fires  throws  some 
illumination  on  that  point.  I  shall  have  something  to  say  on  that  subject 
presently. 

The  next  thing  that  the  Forest  Service  does  in  the  actual  administra- 
tion, after  the  test  of  the  trees,  after  the  marking  of  the  "ripe"  or  mature 
timber,  after  arranging  for  the  sale  of  that  and  the  "down"  timber,  is  to 
make  trails  and  build  roads,  so  that  it  is  possible  to  communicate  with 
one  part  of  the  reservation  from  another,  and,  further,  so  that  if  any 
agricultural  lands  are  taken  up  by  homesteaders  there  is  a  system  of 
communication. 

Then  along  this  road  there  are  built  telephone  lines,  so  that  if  in  one 
portion  of  the  forest  a  fire  starts  a  ranger  who  finds  himself  unable  to 
put  it  out  may  instantly  telephone  for  help,  so  that  men  may  be  sent  there 
and  extinguish  the  fire  while  it  is  still  young.  Also,  they  build  bridges, 
so  that  instead  of  a  wild,  ruinous,  and  rotting  tangle  of  forest  land  you 
have  a  forest  land  which  is  woven  together  by  trails,  by  a  network  of 


LEGISLATIVE   PROBLEMS  583 

roads,  and  by  telephones.  You  have  the  "ripe"  timber  cut  and  taken 
off  so  as  to  increase  the  growth  of  that  which  is  left.  You  have  the 
"down"  timber  disposed  of  by  selling  it  instead  of  permitting  it  to  rot. 
You  create  a  natural  and  healthy  and  perpetual  forest,  and  therefore  a 
profitable  forest. 

SUCCESS  OF  PROTECTION  AGAINST  FOREST  FIRES 

Mr.  President,  about  the  question  of  fires.  In  conversation  yesterday 
I  said  that  one  of  the  most  valuable  services  the  Forest  Service  does  was 
to  preserve  the  forests  from  fires.  I  myself  have  had  a  little  experience 
with  forest  fires  and  considerable  observation  about  them,  and  there  are 
Senators  here  from  the  West  who  have  had  a  great  deal  more.  It  was 
suggested  to  me  that  the  men  who  put  out  the  fires  are  not  the  foresters, 
but  really  farmers.  But  that  shows  that  there  is  still  not  as  much  knowl- 
edge in  the  Senate  or  the  country  as  there  ought  to  be  as  to  what  this 
Bureau  is  doing  in  the  way  of  practical  administration;  because  nearly 
all  the  fires  that  are  now  started  in  these  mighty  western  forests  are  ex- 
tinguished before  they  are  old  fires. 

When  a  forest  fire  gets  under  way  hardly  all  the  farmers  in  a  State 
could  stop  it;  and  I,  in  common  with  other  Senators,  have  seen  great 
areas  of  forest  land,  where  millions  —  and  I  might  also  be  accurate  in 
saying  tens  of  millions  —  of  dollars'  worth  of  Government  property  has 
been  destroyed  in  less  than  two  weeks'  time.  Then  this  is  another  part 
of  its  administration,  and  so  excellent  has  it  been  —  and  I  call  the  atten- 
tion of  the  Senator  from  Montana  to  this,  because  he  will  know  better 
than  I  —  so  excellent  has  this  fire  protection  been  that  the  entire  West 
has  been  practically  clear  of  smoke  during  the  summer  time  for  the  last 
two  years. 

Mr.  President,  that  last  circumstance  is  something  which,  to  those 
who  live  near  great  forest  districts,  is  of  absolutely  incalculable  conse- 
quence. I  myself  have  seen  in  the  forests  of  the  Northeast  mighty  con- 
flagrations raging  which  swept  away  villages  and  towns ;  and  in  one  such 
fire,  I  remember,  more  than  a  hundred  human  beings  lost  their  lives.  I 
have  seen,  and  the  Senator  from  Montana  has  seen  much  more  that  I, 
the  whole  atmosphere  clouded  for  weeks  with  smoke  from  these  criminal 
acts  of  negligence  —  because  that  is  what  they  are.  When  the  Forest 
Service  of  the  United  States  stops  one  of  these  fires  they  have  saved 
more  money  to  the  Government  than  ten  appropriations  like  this.  We 
speak  of  economy,  but  we  mean  economy  of  resources,  and  trees  are 
resources  and  soil  is  a  resource  as  much  as  actual  dollars. 

The  Forest  Service  keeps  careful  records  of  all  fires  on  the  reserves. 
These  include  even  the  smallest  fires,  which  are  put  out  before  they 
have  covered  more  than  a  few  square  rods  —  fires  which,  but  for  the 
vigilance  of  the  forest  officers,  might  become  great  conflagrations,  but 


584  AMERICAN  FEDERAL   GOVERNMENT 

which  are  extinguished  without  cost  beyond  the  salary  of  the  rangers 
who  patrol  these  forests  as  a  part  of  their  regular  duties.  During  the 
year  1906,  out  of  a  total  of  97,000,000  acres  under  administration,  one- 
eighth  of  i  per  cent  was  burned  over,  and  three  one-hundredths  of  i  per 
cent  of  the  estimated  standing  timber  was  destroyed.  But  of  over  1,100 
fires  reported,  450  were  extinguished  without  one  cent  of  extra  cost  to 
the  Government.  Nearly  700  large  fires  were  fought,  at  a  total  cost  of 
less  than  $9,000  for  extra  labor  and  supplies.  That  is  pretty  good  evi- 
dence of  the  efficiency  of  the  protection  which  the  Forest  Service  gives, 
at  a  lower  cost  per  acre,  as  I  have  already  shown,  than  any  European 
country  except  Russia  —  and  Russia's  figure  is  so  low  because  the 
greater  part  of  her  forests  are  not  under  administration  at  all. 

INCREASE  IN  THE  FLOW  OF  STREAMS 

The  next  thing  is  the  exactly  opposite  thing,  and  yet  closely  connected 
with  it  —  I  am  now  talking  about  the  actual  tangible  administration  of 
this  Service.  The  next  thing  which  shows  how  completely  the  Service 
is  practical  and  results  in  a  definite  and  tangible  benefit  to  the  people 
is  whether  or  not,  as  a  matter  of  fact,  it  increases  the  waterflow  in  the 
streams.  If  we  can  show  that  it  has  kept  the  West,  that  mighty  area 
of  imperial  forests,  clear  of  smoke  for  two  summers,  we  have  vindicated 
it.  But  now  if  we  can  show,  as  a  matter  of  fact,  it  has  kept  the  streams' 
banks  full,  we  have  done  more  than  that. 

As  a  matter  of  fact,  actual  stream  measurements  made  in  southern 
California  show  an  increase  of  25  per  cent  in  the  flow  of  water  since  the 
reserves  were  created.  No  wonder  the  two  Senators  from  California 
are  hearty  supporters  of  this  policy.  That  means  life  to  the  people  of 
California.  That  means  prosperity  to  the  people  of  that  region.  That 
means  happy  homes  for  hundreds  and  thousands  of  people.  And  so  the 
Senators  from  California,  speaking  from  actual  experience,  can  testify, 
as  they  have  so  repeatedly  testified,  to  the  practical  excellence  of  the 
tangible  administration  of  these  reserves.  The  same  is  true  elsewhere. 

So  we  see  that  in  all  the  details  of  actual  administration  the  Bureau 
is  well-nigh  perfect.  I  do  not  use  that  adjective  unwittingly  or  lightly. 
I  do  not  use  it  without  having  something  of  an  official  nature  to  support 
it.  It  is  my  purpose  in  the  Senate  to  make  no  statement  that  I  can  not 
substantiate  by  something  recognized  as  authoritative.  I  myself  have 
never  been  greatly  impressed  by  statements,  however  powerful  they  may 
seem,  which  could  not  be  sustained  by  authorities. 

The  Department's  conduct  of  these  reserves  has  been  criticised,  even 
as  to  its  administration  here  in  Washington.  This  Department  and  all 
of  the  Executive  Departments  were  examined  by  a  commission  called 
"the  Keep  Commission."  I  do  not  know  whether  that  Commission  is 
very  popular  or  not,  and  the  question  is  not  whether  it  is.  The  ques- 


LEGISLATIVE   PROBLEMS  585 

tion  is  whether  what  that  Commission  found  of  this  Department  is  true. 
I  wish  to  state  in  the  beginning  that  a  member  of  that  Commission  was 
Mr.  Pinchot.  But  the  man  who  testified  before  the  House  Committee  on 
the  Expenditures  of  the  Agricultural  Department  was  not  Mr.  Pinchot. 
It  was  Mr.  Garfield,  who  is  about  to  be  the  Secretary  of  the  Interior. 
They  went  through  all  the  Departments  and  one  model  department 
was  found  as  to  its  actual  administration,  and  particularly  as  to  its 
system  of  auditing  accounts,  particularly  as  to  the  extreme  care  it  took 
of  the  people's  money.  And  so  admirable  was  this  Bureau  found  to  be 
that  it  has  been  taken  as  an  example  upon  which  to  recast  and  remodel 
other  Departments  and  bureaus  of  the  Government. 

******** 

Mr.  President,  I  think  that  we  have  gone  pretty  thoroughly  into  this 
thing.  I  have  tried  to  do  it  briefly,  and  still  I  have  tried  not  to  forget 
anything.  I  have  here  some  other  data  which  I  shall  ask  the  permission 
of  the  Senate  to  insert  in  my  remarks  without  reading. 

The  VICE-PRESIDENT.  Without  objection,  permission  to  do  so  is 
granted. 

The  matter  referred  to  is  as  follows : 

The  administrative  policy  under  which  the  forest  reserves  are  managed 
was  laid  down  by  the  Secretary  of  Agriculture  in  his  letter  to  the  Forester 
dated  February  i,  1905: 

In  the  administration  of  the  forest  reserves  it  must  be  clearly  borne  in  mind 
that  all  land  is  to  be  devoted  to  its  most  productive  use  for  the  permanent  good 
of  the  whole  people,  and  not  for  the  temporary  benefit  of  individuals  or  com- 
panies. All  the  resources  of  forest  reserves  are  for  use,  and  this  use  must  be 
brought  about  in  a  thoroughly  prompt  and  businesslike  manner,  under  such 
restrictions  only  as  will  insure  the  permanence  of  these  resources.  The  vital 
importance  of  forest  reserves  to  the  great  industries  of  the  Western  States  will 
be  largely  increased  in  the  near  future  by  the  continued  steady  advance  in 
settlement  and  development.  The  permanence  of  the  resources  of  the  reserves 
is  therefore  indispensable  to  continued  prosperity,  and  the  policy  of  this  De- 
partment for  their  protection  and  use  will  invariably  be  guided  by  this  fact, 
always  bearing  in  mind  that  the  conservative  use  of  these  resources  in  no  way 
conflicts  with  their  permanent  value. 

You  will  see  to  it  that  the  water,  wood,  and  forage  of  the  reserves  are  con- 
served and  wisely  used  for  the  benefit  of  the  home  builder  first  of  all,  upon 
whom  depends  the  best  permanent  use  of  lands  and  resources  alike.  The 
continued  prosperity  of  the  agricultural,  lumbering,  mining,  and  live-stock 
interests  is  directly  dependent  upon  a  permanent  and  accessible  supply  of 
water,  wood,  and  forage,  as  well  as  upon  the  present  and  future  use  of  these 
resources  under  businesslike  regulations,  enforced  with  promptness,  effective- 
ness, and  common  sense.  In  the  management  of  each  reserve  local  questions 
will  be  decided  upon  local  grounds ;  the  dominant  industry  will  be  considered 
first,  but  with  as  little  restriction  to  minor  industries  as  may  be  possible;  sudden 
changes  in  industrial  conditions  will  be  avoided  by  gradual  adjustment  after 


586  AMERICAN  FEDERAL   GOVERNMENT 

due  notice,  and  where  conflicting  interests  must  be  reconciled  the  question  will 
always  be  decided  from  the  standpoint  of  the  greatest  good  of  the  greatest 
number  in  the  long  run. 

Mr.  BEVERIDGE.  Mr.  President,  I  do  not  know  that  I  should  have 
gone  so  much  into  the  discussion  —  but  I  am  glad  I  have  gone  into  it  — 
if  it  had  not  been  for  the  original  question  of  the  character  of  the  services 
rendered  by  that  remarkable  public  servant,  the  Chief  Forester  of  the 
United  States,  whom  I  have  known  intimately  since  I  was  chairman  of 
the  Forestry  Committee  of  the  Senate  years  ago,  and  whose  work  I  have 
observed  with  increasing  wonder  and  admiration  —  a  man  who  never 
spares  himself  mental  or  physical  fatigue.  Mr.  President,  when  that 
man  shall  have  completed  his  work  on  earth  his  monument  will  be  no 
shaft  of  stone  or  image  of  brass.  No !  it  will  be  the  great  and  splendid 
forest  reserves  reclothed  with  nature's  garment.  It  will  be  mighty  moun- 
tain peaks  now  bare,  then  covered  with  the  woods  nature  once  put  there 
and  which  he  has  restored.  It  will  be  the  streams  now  dry,  running 
bank  full  for  the  welfare  of  the  people.  It  will  be  human  welfare  and 
human  happiness. 

THE  NATIONAL  FOREST   POLICY1 

SINCE  Mr.  Roosevelt  has  been  President  and  Gifford  Pinchot  chief  of 
the  forest  service,  forest  reserves  in  the  West  have  been  increasing  with 
such  rapidity  as  to  provoke  a  great  deal  of  criticism  from  Western 
Senators  and  lumber  interests.  The  forest  service,  beginning  as  an  un- 
important bureau  in  the  Department  of  Agriculture,  has  now  come  to 
have  an  entity  of  its  own  and  broad  powers  over  selected  portions  of  the 
public  lands.  In  the  closing  days  of  Congress  Easterners,  who  give  but 
little  attention  to  matters  in  the  far  Western  States,  were  considerably 
surprised  at  the  concerted  attack  made  by  several  Western  Senators  on 
the  forest  policy  of  the  Administration. 

This  opposition  to  the  forest  service  is  declared  by  those  in  a  position 
to  know  best,  to  have  sprung  from  two  sources  —  opposition  to  the  gen- 
eral public  lands  policy  urged  by  the  President,  and  misconception  of 
the  actual  purpose  and  probable  results  of  the  forest  service  policy.  For 
reasons  not  unremotely  allied  to  this  wave  of  criticism,  and  because  the 
name  was  a  misnomer,  the  designation  National  Forest  has  been  sub- 
stituted for  forest  reserves. 

The  discussion  by  the  President,  in  his  successive  messages  to  Con- 
gress, of  public  land  questions  seems  to  have  aroused  a  very  general 
feeling  of  alarm  among  Western  men.  Naturally,  the  interests  which 
have  found  their  profit  in  fraudulent  operations  under  the  present  laws 
—  land-grabbers,  timber-grabbers,  and  range-fencers  —  were  not  likely 

1  New  York  Evening  Post,  March  20,  1907. 


LEGISLATIVE   PROBLEMS 


587 


to  favor  the  changes  intended  to  put  a  stop  to  their  operations.  It  would 
be  a  mistake,  however,  to  suppose  that  desire  for  illicit  gain  is  the  motive 
which  actuates  the  majority  of  the  Western  people  not  willing  to  follow 
the  President's  lead. 

The  whole  tendency  of  things  in  the  West  tends  to  promote  reckless- 
ness in  the  use  of  national  resources,  and  to  cause  many  Western  people 
to  look  with  leniency  on  questionable  methods  of  acquiring  title  to 
property  from  the  public  domain.  The  people  are  too  new  to  the  region, 
too  unattached,  too  hustling,  to  give  great  thought  to  the  distant  future. 
Boom  development  is  far  too  much  the  ideal  for  which  most  people  are 
working.  The  distinction  between  exploitation  and  real  upbuilding  is 
that  between  the  man  who  develops  the  country  and  the  man  who  skins 
the  land.  This  is  the  Administration  argument: 

THE  ADMINISTRATION  ARGUMENT 

The  national  forests  are  undeveloped  properties.  They  contain  re- 
sources basic  to  the  industrial  life  of  the  several  Western  States,  so  that 
their  wise  conservation  is  essential  to  the  permanent  welfare  of  these 
States.  But,  to  make  them  useful,  large  capital  expenditures  are  neces- 
sary. Even  to  protect  them  properly  calls  for  a  far  greater  sum  than 
Congress  would  be  likely  to  vote.  Nor  would  it  be  just  for  Congress  to 
take  from  the  national  Treasury  this  money,  which  would  be  expended 
for  local  benefits,  when  the  money  can  be  raised  perfectly  well  by  a 
moderate  charge  upon  the  users  of  the  national  forests  for  valuable 
privileges  or  materials.  The  only  way  to  find  the  means  for  develop- 
ing the  national  forests  at  the  present  time  as  they  should  be  developed 
lies  in  securing  a  revenue  from  them. 


State 

Number 
of 
reserves 

Acres 

Arizona 

1  3 

o  ,4.co  82  < 

California 

IQ 

19,882,487 

Colorado 

16 

12,698,825 

Idaho                                             

16 

19,048,806 

Kansas                           ............ 

i 

97,280 

Montana             ............... 

20 

17,344,883 

Nebraska   

3 

556,072 

Nevada 

766,959 

New  Mexico 

12 

7,024,504 

Oklahoma 

I 

60,800 

Oregon                   .        ........... 

12 

12,500,728 

South  Dakota        

4 

1,263,720 

Utah 

16 

6,731,300 

Washington 

5" 

7,785,606 

Wyoming                                              .        .    . 

8 

8,637,366 

588  AMERICAN  FEDERAL   GOVERNMENT 

The  area  of  the  national  forests  in  1891  was  2,437,120  acres.  This 
has  increased  steadily  except  during  the  period  from  1893  to  1896  in- 
clusive, until  to-day  the  acreage  of  the  national  forests  is  148,281,230. 
On  February  i,  1907,  there  were  136  forest  reserves  in  the  United  States 
with  a  total  acreage  of  123,850,161.  How  these  were  located  and  their 
acreage  are  shown  in  the  above  table. 

THE  PRESIDENT'S  RECENT  PROCLAMATION 

One  of  the  last  acts  of  Congress  before  adjournment  this  month  was 
to  pass  a  law  forbidding  the  creation  of  forest  reserves,  except  by  Con- 
gress in  the  six  States  of  Washington,  Oregon,  Montana,  Idaho,  Wyo- 
ming, and  Colorado.  The  effect  of  this  act  would  have  been  to  delay 
the  extension  of  national  forests  in  these  States  had  not  the  President, 
as  soon  as  he  became  aware  of  the  purpose  of  Congress,  rendered  the 
legislative  will  practically  void  by  adding  17,000,000  acres  to  the  national 
forest  area  in  those  States  by  executive  order.  This  great  acreage  is 
divided  into  thirty-two  separate  reserves  of  forests. 

It  is  impossible  to  say  how  much  remaining  public  land  —  though 
probably  but  a  very  small  proportion  —  is  adapted  for  national  forest 
purposes,  because  no  satisfactory  examinations  have  been  made  of  this 
land  to  determine  its  best  use.  Instead  of  answering  this  question,  the 
following  statement,  comparing  the  stumpage  of  the  national  forest  with 
the  stumpage  of  the  Western  States  as  a  whole,  may  prove  interesting : 

The  estimated  stumpage  of  the  national  forests  is  330  billion  feet.  An 
estimate  of  the  Western  States,  which  includes  only  some  of  the  States  for 
certain  species,  and  omits  several  species,  gives  800  billion  feet  as  the 
total  stumpage  of  the  region.  Probably  only  25  per  cent  of  the  timber 
of  the  States  in  which  they  are  located  is  included  in  the  national  forests. 

The  only  lands  among  the  national  forests  which  have  been  thrown 
open  to  settlement  are  those  which  were  restored  to  the  public  domain 
March  16  last.  This  was  not  forested  land,  but  a  part  of  it  was  intended 
to  be  used  for  experiments  in  forest  planting.  It  was  restored  because 
agriculture  on  part  of  the  area  had  become  possible  by  means  of  the 
Campbell  system  of  dry  farming. 

Lands  temporarily  withdrawn  from  entry,  comprising  550,000  acres 
in  Colorado  and  370,000  in  Washington,  were  released  this  month. 
No  other  areas  of  importance  have  recently  been  released,  though  it  is 
the  active  policy  of  the  Forest  Service  to  withhold  no  land  more  im- 
portant for  other  purposes  than  for  forest  growth. 

Under  the  Administration  of  President  Harrison  13,416,710  acres 
were  added  to  the  forest  reserve;  under  President  Cleveland  the  total 
became  25,686,320,  and  under  President  Roosevelt  the  total  is  56,876,934. 
The  following  table  shows  the  growth  in  area  of  the  national  forests  from 
1891  to  the  present  time: 


LEGISLATIVE   PROBLEMS  589 


GROWTH  IN  AREA  OF  THE  NATIONAL  FORESTS 

1891 2,437,120         1900 46,571,359 

1892 5,752,840   1901 46,082,719 

1893 17,928,070   1902 59,966,090 

1894 17,928,070  J9°3 62,962,849 

1895 17,928,070  1904 63,093,164 

1896 17,928,070  1905 97,716,860 

1897 39,103,030  1906 127,154,371 

1898 43,744,424  1907,  March  15  ....  148,281,230 

1899 46,726,879 

In  area  the  reserves  were  increased  during  the  fiscal  year  1905  to  1906 
from  85,693,422  to  106,999,138  acres.  In  revenue  they  brought  in 
$767,219.96,  as  against  $60,142.62  for  the  previous  year.  In  timber 
sales  there  were  disposed  of  for  immediate  or  early  removal  nearly 
300,000,000  board  feet  of  lumber  at  stumpage  prices  ranging  up  to  $4 
per  thousand  (besides  other  material  to  a  large  value),  as  against 
96,060,258  board  feet,  with  a  maximum  price  of  $2.50  per  thousand  in 
1904-5  and  69,257,710  board  feet  in  1903-4.  The  number  of  free-use 
permits  granted  in  the  same  years  also  showed  progressive  increase. 
In  the  year  1904-5  the  reserves  were  under  forest  service  control  only 
after  February  i. 

Local  sentiment  has  sometimes  been  unfavorable  to  the  creation  of 
reserves  before  their  effect  upon  the  public  welfare  was  understood ;  but 
opposition  has  always  dissolved  under  the  test  of  actual  experience.  The 
reserves  do  not  withhold  land  from  agricultural  use.  Though  they  were 
made  from  the  most  rugged  and  mountainous  parts  of  the  West  and 
were  intended  to  include  only  land  unsuited  for  agriculture,  by  the  act  of 
June  n,  1906,  the  right  is  given  settlers  to  homestead  within  the  reserves 
wherever  strips  and  patches  of  tillable  land  can  be  found.  At  the  same 
time,  through  their  water-conserving  power,  these  forests  fix  in  regions 
of  scanty  rainfall  the  amount  of  land  which  can  be  brought  under  the 
plough,  since  at  best  much  otherwise  fertile  land  must  go  uncultivated 
for  want  of  water.  Without  forest  preservation  much  of  the  land  now 
under  irrigation  would  have  to  be  abandoned  again  to  the  desert. 

NOT  A  MONEY-MAKING  SCHEME 

It  is  not  the  policy  of  the  forest  service  to  make  money  out  of  the 
reserves  of  the.  Government.  They  are  administered  on  the  same  prin- 
ciple that  a  private  estate  is  administered  by  an  executor;  to  make  it 
pay  the  greatest  returns  to  the  beneficiaries  —  in  this  case  the  people  of 
the  United  States.  By  an  act  of  Congress,  10  per  cent  of  the  gross  re- 
ceipts from  the  national  forests  are  made  over  to  the  several  States  in 
wrhich  the  reserves  are  situated,  for  the  benefit  of  the  counties  which 


590  AMERICAN   FEDERAL   GOVERNMENT 

would  otherwise  receive  no  revenue  from  a  part  of  their  area.  This  re- 
dressed a  real  grievance.  Eventually,  it  is  hoped,  the  counties  affected 
will  find  themselves  far  better  off  than  they  would  have  been  without  the 
reserves,  for,  it  is  argued,  private  ownership  followed  by  exploitation 
would  have  destroyed  the  sources  of  revenue  by  leaving  little  or  nothing 
of  permanent  taxable  value. 

On  the  floor  of  the  Senate  opponents  of  Mr.  Pinchot's  forest  policy 
conceded  that  he  had  won  over  the  stockmen  to  his  way  of  thinking. 
On  this  point  Secretary  Wilson  said: 

I  wish  to  commend  the  heartiness  and  good  spirit  with  which  the  associa- 
tions of  Western  stockmen  have  cooperated  in  our  efforts  to  enforce  fair  and 
just  measures  for  the  regulation  of  grazing  in  the  interest  of  all  users  of  the 
forests,  and  in  the  interest  of  the  public,  to  whom  these  forests  belong.  The 
charge  of  a  grazing  fee,  made  for  the  first  time  during  the  last  year,  though 
reasonable  in  view  of  the  advantages  of  grazing  regulation  to  the  stockmen  and 
the  cost  of  reserve  administration  to  the  Government,  and  justly  due  to  the  in- 
terest of  the  public,  might  have  been  expected  to  cause  dissatisfaction  and  fric- 
tion. On  the  contrary,  as  soon  as  the  reasons  for  the  charge  and  the  method  in 
which  it  would  be  applied  had  been  explained,  it  was  generally  approved  and 
paid  willingly  and  promptly.  It  was  followed  by  no  falling  off  in  the  number  of 
stock  grazed  in  the  reserves.  In  some  cases  the  associations  of  stockmen  have 
voluntarily  aided  the  service  in  settling  local  difficulties.  Their  whole  conduct 
has  shown  remarkable  moderation,  far-sightedness,  and  readiness  to  recognize 
and  accept  what  is  in  the  permanent  interest  of  their  industry,  even  though  it 
involves  the  sacrifice  of  immediate  personal  advantage. 

SPEECH   OF   SENATOR   FRANCIS    G.   NEWLANDS   ON 
INLAND   WATERWAYS1 

MR.  NEWLANDS  said: 

Mr.  President,  the  agitation  for  a  deep  waterway  from  St.  Louis  to 
the  Gulf  and  from  the  Lakes  to  the  Gulf  has  reached  such  proportions 
as  to  create  a  general  demand  from  every  section  of  the  country  that  a 
broad  and  comprehensive  plan  should  be  inaugurated  for  the  improve- 
ment of  all  the  navigable  waterways  of  the  country,  and  that  legislation 
should  be  adopted  creating  a  fund  for  continuous  and  uninterrupted 
work,  securing  a  fair  apportionment  of  the  work  between  the  different 
sections  of  the  country,  and  providing  for  a  businesslike  administration 
with  reference  both  to  examination  and  construction. 

The  President,  realizing  this  demand,  determined  to  investigate  the 
matter  with  a  view  to  recommending  to  Congress  such  a  broad  and 
comprehensive  plan;  and,  as  a  step  in  that  direction,  appointed  the 
Inland  Waterway  Commission  to  look  into  the  various  questions  relat- 
ing to  the  inland  waterways  and  their  full  economic  development,  and  to 

1  Congr.  Record,  reported  Jan.  6,  1908. 


LEGISLATIVE    PROBLEMS  591 

report  to  him,  with  the  expectation  that,  if  their  recommendation  was 
approved  by  him,  it  would  be  submitted  to  Congress  for  its  action.  The 
Commission  has  been  in  frequent  sessions  since  April  last.  It  has  visited 
nearly  every  section  of  the  country.  Several  members  of  the  Commis- 
sion visited  the  Pacific  coast  and  inspected  the  Sacramento,  the  San 
Joaquin,  and  the  Columbia  rivers.  The  entire  Commission  took  a  tour 
of  the  Great  Lakes,  and  also  made  a  trip  from  St.  Paul  to  the  Gulf  upon 
the  Mississippi  River.  Subsequently  a  majority  of  the  Commission 
made  an  examination  of  the  Missouri  River. 

WATERWAY  CONVENTIONS 

In  addition  to  this  the  Commission  has  been  represented  at  various 
conferences  and  conventions  which  have  been  held  throughout  the 
country  from  the  Pacific  to  the  Atlantic  and  from  the  Lakes  to  the  Gulf 
upon  this  important  question. 

The  general  interest  which  the  country  is  showing  in  the  improvement 
of  waterways  is  manifest  in  the  organization  of  various  river-improvement 
associations  in  all  parts  of  the  country  and  in  meetings  of  these  and  other 
associations,  the  principal  object  of  which  is  to  consider  waterway  im- 
provement. I  shall  enumerate  some  of  these. 

The  Inland  Waterways  Commission  is  now  engaged  in  framing  a 
preliminary  report  to  the  President,  but  it  has  not  yet  reached  a  final 
conclusion.  I  wish  to  say,  as  a  member  of  that  commission,  that  I 
simply  express  here  my  individual  views  and  that  I  have  introduced  in 
the  Senate  a  bill  (S.  500)  providing  for  the  appointment  of  an  inland 
waterway  commission  for  the  development  of  the  inland  waterways 
of  the  country,  purely  in  a  tentative  way.  I  invite  suggestion,  criticism, 
and  amendment,  so  that  the  commission  may  have  the  advantage  of  the 
consideration  of  this  question  by  Members  of  both  bodies  of  Congress 
and  by  the  country  at  large  before  it  reaches  a  final  conclusion. 

GOVERNMENT  WORKS 

In  the  past,  Mr.  President,  it  has  been  the  general  view  of  the  country 
that  the  Government  was  unable  to  do  constructive  work;  that  it  was 
unable  to  do  such  work  efficiently ;  that  it  was  unable  to  do  it  economi- 
cally ;  that  it  was  unable  to  do  it  quickly.  The  experience  of  the  country 
within  the  past  few  years  with  two  great  systems  of  constructive  work 
has  proved  the  contrary  and  has  proved  that  the  Government  is  able 
to  do  its  own  work. 

Mr.  BEVERIDGE.  I  will  ask  the  Senator  what  are  the  two  examples 
to  which  he  refers? 

Mr.  NEWLANDS.  Those  two  exceptions  are  the  construction  of  the 
Panama  Canal  and  the  work  of  the  Reclamation  Service.  For  the  work 


592  AMERICAN  FEDERAL   GOVERNMENT 

of  the  Panama  Canal  service  $75,000,000  has  already  been  appropriated, 
of  which  about  $39,000,000,  I  believe,  has  already  been  spent.  The 
Reclamation  Service  has  a  fund  of  about  $39,000,000,  a  very  large  pro- 
portion of  which  has  already  been  spent  on  about  twenty-three  different 
projects  in  fourteen  or  fifteen  different  States  and  Territories.  I  will 
not  enlarge  upon  the  work  of  either  one  of  these  services.  It  is  sufficient 
to  say  that  the  country  is  satisfied  with  the  work  of  both.  So  far  as  the 
region  which  I  represent  is  concerned  —  the  arid  and  semiarid  region  — 
there  is  a  feeling  of  universal  satisfaction  with  the  energetic  and  efficient 
work  and  the  thoroughly  organized  work  that  has  been  done  by  the 
Reclamation  Service. 

Now,  Mr.  President,  in  shaping  this  bill  I  have  endeavored  to  unite 
the  best  features  of  both  those  bills. 

Mr.  BEVERIDGE.     Mr.  President  — 

The  VICE-PRESIDENT.  Does  the  Senator  from  Nevada  yield  to  the 
Senator  from  Indiana? 

Mr.  NEWLANDS.     If  the  Senator  will  permit  me  a  moment  further  — 

Mr.  BEVERIDGE.  I  am  profoundly  interested  in  what  the  Senator  is 
saying  on  this  whole  great  plan,  and  I  think  the  Senator  might  enlarge 
there  upon  the  fact  that  the  Reclamation  Service  and  the  Panama  Canal, 
as  enterprises,  are  conducted  also  by  officers  of  the  Government,  and  in 
the  case  of  the  Panama  Canal  it  finally  came  down  to  the  most  efficient 
work  by  the  officers  of  the  Regular  Army.  Those  two  instances  I  call  to 
the  Senator's  attention,  so  that  he  might  put  them  into  his  speech.  They, 
however,  are  not  the  only  ones.  There  is  the  telegraph  service  in  Alaska, 
covering  8,000  miles  or  more,  and  other  things  of  that  kind. 

I  ventured  to  interrupt  the  Senator  for  the  purpose  of  directing  his 
attention  more  particularly  to  those  facts. 

Mr.  NEWLANDS.  I  am  very  glad  to  receive  the  suggestion  of  the 
Senator  from  Indiana.  It  is  true,  as  he  says,  that  both  of  these  services 
are  being  conducted  by  officers  of  the  Government. 

My  individual  view  is  that  within  the  next  ten  years  the  United  States 
should  expend  at  least  $500,000,000  in  the  improvement  of  its  inland 
waterways;  that  we  ought  to  enter  upon  this  work  contemporaneously 
in  every  section  of  the  country ;  that  we  should  enter  upon  the  work 
of  the  rivers  of  the  Pacific  coast,  upon  the  rivers  of  the  Atlantic  coast, 
upon  the  Gulf  coast,  and  upon  the  Mississippi  River  and  its  tribu- 
taries, and  upon  the  coastal  canals  or  sheltered  waterways  which  will 
connect  the  rivers  of  the  Gulf  and  Atlantic  coast  from  Texas  to  Maine. 
All  these  works  should  be  commenced  and  prosecuted  contemporane- 
ously. I  wish  to  say  further  that  that  is  the  sentiment  of  the  people  of 
the  United  States,  and  Congress  will,  I  have  no  doubt,  accommodate 
itself  to  that  view  of-  the  great  public. 


LEGISLATIVE   PROBLEMS  593 


A  BROAD  AND  COMPREHENSIVE  TREATMENT 

Now,  I  ask,  what  is  a  broad  and  comprehensive  treatment  of  a  river 
that  is  to  be  used  in  interstate  or  foreign  commerce  for  navigation? 
Take  the  Mississippi,  so  far  as  its  western  tributaries  are  concerned; 
the  Missouri,  and  its  tributaries;  the  Yellowstone;  the  Madison;  the 
Gallatin;  and  the  Jefferson  rivers;  farther  down,  the  Platte  and  the 
Kaw;  farther  down,  the  Arkansas  River.  All  these  rivers  have  their 
source  in  the  region  to  which  the  Senator  and  I  belong  —  in  the  snows 
of  the  mountains. 

PREVENTION  OF  FLOODS 

Now,  what  does  a  rational  treatment  of  that  river,  so  far  as  concerns 
its  utilization  for  navigation,  involve?  It  involves  for  one  thing  the 
prevention  of  floods,  for  these  waters  rush  down  in  torrential  streams 
in  the  spring  months  and  destroy  property,  and  then  during  the  summer 
and  fall  months,  the  waters  having  rushed  down  to  the  ocean  and  having 
been  wasted,  the  river  itself  is  reduced  to  an  attenuated  stream  upon 
which  boats  can  not  float.  What  does  a  rational  treatment  of  that  river 
involve?  Obviously  storage,  all  along  the  line,  wherever  it  can  be  done 
practicably  and  economically  and  with  a  view  to  the  reasonable  cost 
of  the  entire  enterprise.  What  does  storage  upon  those  upper  rivers 
mean?  It  means  the  construction  of  artificial  reservoirs  in  which  these 
waters  are  impounded  during  the  period  of  flood,  and  from  these  reser- 
voirs waters  are  led  over  the  great  plains,  the  arid  and  the  semiarid  plains, 
and  used  for  purposes  of  cultivation.  These  plains  absorb  the  water 
like  a  sponge  and  gradually  give  it  out  by  the  process  of  seepage  to  the 
tributary  streams  of  the  great  river.  Give  it  out  when?  Give  it  out 
when  it  is  most  needed  for  navigation,  during  the  months  of  July,  August, 
and  September.  So  irrigation  is  a  proper  method  of  treating  the  river 
for  navigation,  for  it  is  one  method  of  impounding  the  flood  waters  of 
these  tributary  streams,  preventing  those  flood  waters  from  creating 
destruction  below  in  the  spring  and  preserving  them  for  a  beneficent 
purpose  later  on  in  the  summer  and  fall  months.  In  the  more  humid 
regions,  in  which  irrigation  is  not  required  and  in  which  evaporation  is 
less  rapid  than  in  the  arid  and  semiarid  districts,  the  reservoir  may  be 
used  for  the  storage  of  storm  and  thaw  waters,  which  may  be  kept  im- 
pounded, as  is  now  done,  for  example,  in  the  upper  Mississippi  and  in 
some  foreign  countries,  until  the  time  of  low  water,  when  the  contents 
may  be  let  out  in  such  manner  as  to  maintain  navigation  throughout  the 
summer. 

Now,  the  Senator's  view  doubtless  would  be  that  the  Government 
has  no  power  to  enter  upon  the  reclamation  per  se  of  arid  lands  not  in 
its  own  ownership.  There  is  no  power  expressly  granted  in  the  Con- 

38 


594  AMERICAN   FEDERAL   GOVERNMENT 

stitution  for  that  purpose,  and  I  believe  with  the  Senator  from  Colorado 
that  this  is  a  Government  of  granted  powers,  and  that  we  can  only  exer- 
cise the  granted  powers.  I  shall  simply  contend  for  the  full  exercise  of 
these  powers.  No  one  will  deny  the  full  power  of  the  Government  over 
the  question  of  interstate  and  foreign  commerce.  No  one  will  deny  the 
power  of  the  Government  to  make  a  river  navigable.  If  you  do  not  deny 
that,  then  the  Government  can  adopt  any  practicable  means  to  make  it 
navigable,  and  it  need  not  confine  itself  to  digging  a  channel  when  it  can 
by  this  process  of  the  storage  of  waters  at  the  heads  of  these  streams  and 
by  this  process  of  spreading  those  waters  over  the  vast  arid  and  semiarid 
plains  suspend  the  flow  of  that  water  until  by  the  process  of  seepage  it 
gradually  goes  back  to  the  streams  at  the  time  when  it  is  most  needed 
for  the  maintenance  of  a  full,  safe,  and  sure  channel  for  the  purposes  of 
navigation. 

FORESTRY 

So  it  is  with  forestry.  The  forests  are  the  conservators  of  moisture. 
In  a  state  of  nature  the  streams  gathering  in  forests  run  clear  and  in 
fairly  uniform  volume  throughout  the  year.  The  soil  is  protected  from 
the  beating  of  the  storm  by  the  branches  and  foliage,  which  break  the 
drops  into  spray,  and  this  trickles  gently  down  the  trunks  and  along  the 
roots,  so  that  the  soil  remains  open  and  pervious.  This  soft,  spongy 
soil  is  further  protected  by  a  mulch  of  partly  decayed  leaves,  twigs,  and 
shreds  of  bark  and  wood ;  and  in  the  mulch  and  friable  mold  the  waters 
of  rains  and  thaws  are  absorbed  as  in  a  sponge,  and  do  not  flow  off 
quickly  in  rills  and  freshets,  but  seep  slowly  through  the  soil  into  the  per- 
manent springs  by  which  the  streams  are  fed.  Denude  large  areas  of 
their  forests,  and  the  rains  falling  from  the  heavens  rush  off  the  lands  in 
torrential  streams  and  increase  the  volume  of  the  floods  that  are  so  de- 
structive below.  We  all  know  that  one  of  the  causes  of  these  great  and 
destructive  floods  has  been  the  destruction  of  our  forests.  If,  then,  the 
forests  are  conservators  of  moisture,  if  they  are  natural  storage  reservoirs 
of  moisture,  and  if  the  impounding  of  these  waters  in  artificial  reservoirs 
for  the  purpose  of  holding  them  until  they  can  swell  the  volume  of  the 
stream  below  for  the  purpose  of  navigation  is  constitutional,  can  we 
not  make  use  of  the  reservoirs  that  nature  has  created  and  develop  them ; 
and  if  we  can  do  that,  can  we  not  take  control  over  large  areas  of  land 
and  replace  the  forests  that  have  been  destroyed  ? 

Of  course  the  Constitution  grants  no  power  to  the  National  Govern- 
ment to  enter  into  the  timber  business  or  the  lumber  business  as  such, 
but  it  has  the  power  to  make  a  sure,  stable,  equal  stream  for  purposes 
of  navigation;  and  if  it  can  accomplish  this  by  developing  the  forests, 
the  natural  reservoirs  of  the  country,  so  as  to  hold  these  waters  in  sus- 
pense until  the  time  when  they  are  most  needed,  it  has  the  power  to 


LEGISLATIVE   PROBLEMS  595 

preserve  and  protect  the  existing  forests,  it  has  the  power  to  replace  the 
forests ;  and  certainly  in  that  connection  it  has  the  power  to  plant  trees ; 
and  if  it  has  the  power  to  plant  trees,  it  has  the  power  to  sell  the  timber 
which  is  planted  when  it  becomes  unnecessary  to  the  main  purpose  of 
the  enterprise  —  the  conservation  of  moisture. 

If  the  forest  becomes  too  crowded,  is  there  any  objection  to  the  re- 
moval of  useless  trees,  and  can  you  say  that  because  the  Constitution  has 
not  granted  to  the  Government  the  power  to  enter  into  the  lumber  busi- 
ness it  therefore  can  not  sell  that  timber  as  a  part  of  the  compensation 
of  the  enterprise  itself?  Would  you  say  with  reference  to  these  great 
reclamation  enterprises,  which  constitute  a  rational  method  of  treating 
the  river  for  the  purpose  of  navigation,  that  the  Government  can  not 
compensate  this  fund  and  diminish  the  cost  of  the  entire  enterprise  by 
selling  irrigation  rights,  thus  getting  back  proportionately  from  all  the 
lands  benefited  the  cost  of  the  reclamation  work  and  diminishing  the 
cost  of  the  main  enterprise  —  the  promotion  and  development  of  a  navi- 
gable stream? 

RECLAMATION  OF  SWAMP  LANDS 

But  the  comprehensive  plan  for  the  development  of  these  waterways 
not  only  involves  reclamation  by  irrigation  and  the  protection  and  re- 
placement of  forests,  but  it  also  involves  the  drainage  of  swamp  lands 
below.  The  reclamation  of  swamp  lands  is  the  antithesis  of  the  irriga- 
tion of  arid  lands.  "There  is  too  little  water  on  the  land  above  and  there 
is  too  much  below.  Why  is  there  too  much  below?  Because  the  river 
breaks  through  its  banks,  divides  itself  into  numerous  channels,  creates 
bayous  and  sloughs,  and  thus  dedicates  vast  areas  of  cultivable  land,  the 
richest  in  the  world,  to  proverty  and  death. 

Mr.  BEVERIDGE.  Will  the  Senator  from  Nevada  permit  an  interrup- 
tion? 

Mr.  NEWLANDS.    Certainly. 

Mr.  BEVERIDGE.  As  I  said,  and  as  the  Senator  from  New  Hampshire 
said,  I  think  this  is  one  of  the  very  greatest  subjects  before  the  American 
people,  and  one,  perhaps,  in  which  they  are  as  much  interested  as  any 
other  just  at  the  present  time.  I  wish  the  Senator  would  follow,  till  he 
establishes  it  more  closely,  the  analogy  between  the  Government's  power 
over  the  conservation  of  waters  and  their  control  as  navigable  waters 
and  the  power  of  the  Government  over  forests.  For  example,  one  of  the 
most  fundamental  rules  in  statutory  and  constitutional  interpretation  is 
that  if  the  power  is  conceded  it  carries  with  it  any  incidental  power 
necessary  to  make  it  complete.  So  if  it  be  conceded  —  and  that  has  been 
thrashed  out  —  that  we  have  the  right  as  a  Government  to  control  cer- 
tain forest  reserves,  it  follows  as  an  incident  of  that  that  it  is  not  only  our 
right  and  our  power,  but  our  duty  to  dispose  of  what  is  called  "down 


596  AMERICAN   FEDERAL   GOVERNMENT 

timber"  and  "express  timber";  and  therefore  the  Government  not  only 
has  the  right,  but  it  becomes  its  duty,  to  become  a  lumber  merchant  to 
that  extent. 

Again,  our  power  to  build  the  Panama  Canal  is  conceded,  let  us  say. 
That  carries  with  it  the  power  to  do  what  the  Government  is  now  doing ; 
that  is,  to  operate  a  line  of  steamships  and  also  to  operate  a  railroad 
across  the  Isthmus  of  Panama.  So  it  can  be  carried  out  in  numberless 
instances. 

I  would  be  glad  if  the  Senator  would  spend  a  little  more  time  in 
establishing  the  analogy  between  the  Government's  power  over  the  con- 
servation of  waters  and  their  control  as  navigable  waters  and  these  other 
things  which  the  Senator  has  referred  to. 

If  the  Senator  from  Nevada  will  permit  me  for  just  a  moment  further. 
In  reference  to  what  was  said  by  the  Senator  from  Colorado,  of  course 
it  has  been  held,  since  Gibbons  v.  Ogden  until  now,  that  the  power  of 
the  National  Government  over  navigable  waters,  even  wholly  within  a 
State,  goes  to  the  point  that  signals  and  lights  may  be  maintained  by 
the  National  Government,  and  it  may  do  everything  else  that  is  necessary. 
The  State  has  no  right  to  establish  lights,  or  signals,  even  in  its  own 
waters,  because  they  might  interfere  with  the  navigation  of  commerce 
that  passes  beyond  the  State  lines. 

So  again,  the  National  Government,  in  improving  waterways,  for 
which  we  now  expend  scores  of  millions  every  year  in  the  river  and 
harbor  bill,  has  the  right  to  prevent  the  State  from  in  any  way  obstruct- 
ing that  waterway.  If  that  was  not  conceded,  of  course,  it  would  be 
destructive  of  the  power  to  improve  it.  Therefore,  if  the  establishment 
by  the  State  of  an  electric-light  plant  upon  the  waters  running  through 
the  State,  which  were  navigable,  interfered  with  that  purpose,  the  Na- 
tional Government  would  have  the  right  to  prevent  the  erection  of  such 
an  electric-light  plant.  But  per  contra,  if  the  erection  of  such  an  electric- 
light  plant  became  necessary  as  an  aid  to  the  navigability  of  the  waters, 
it  would  necessarily  follow,  would  it  not,  that  we  would  have  the  right 
to  construct  it? 

The  Senator  will  pardon  me,  but  I  think  it  is  a  vital  point  in  his  argu- 
ment, and  if  he  will  follow  that  analogy  a  little  more  closely,  it  will  be 
agreeable  to  many  of  the  friends  of  his  measure. 

Mr.  NEWLANDS.  I  have  already  gone  further  into  the  argument  of 
these  questions  than  I  intended  when  I  rose.  My  purpose  was  simply  to 
present  a  statement  of  the  bill  and  an  explanation  of  its  provisions,  but 
I  have  been  drawn  out  somewhat  by  the  challenge  of  the  Senator  from 
Colorado.  It  was  not  my  intention  to  go  into  all  these  refinements. 
However,  I  will  pursue  the  argument  that  I  was  pursuing  regarding  the 
various  uses  of  the  waters  of  a  stream  which  tend  to  the  promotion  of 
its  navigability,  and  I  will  take  up  in  its  turn  the  suggestion  that  the 
Senator  from  Indiana  makes  with  reference  to  electric  power. 


LEGISLATIVE   PROBLEMS  597 

I  was  upon  the  question  of  the  reclamation  of  swamp  lands,  which  I 
stated  was  the  antithesis  of  the  reclamation  of  arid  lands,  the  swamp 
lands  being  at  the  lower  reaches  of  the  streams,  the  arid  lands  at  the 
sources  of  the  streams.  We  all  know  that  a  great  river  in  making  its 
way  through  these  lowlands  during  periods  of  flood  divides  itself  into 
numerous  channels,  which  make  bayous  and  sloughs,  and  create  these 
vast  areas  of  swamp  lands,  incomparably  rich,  for  they  are  composed  of 
alluvial  soil,  and  yet  are  incapable  of  cultivation  because  of  an  excess  of 
moisture.  Now,  the  reclamation  of  swamp  lands  as  such,  unless  the 
Government  is  the  owner  of  those  lands,  would  not  be  one  of  the  functions 
of  Government  under  the  granted  powers  of  the  Constitution.  But  the 
control  of  the  river  for  purposes  of  navigation  is ;  and  if  the  control  of 
that  river  involves  the  construction  of  levees  along  its  banks  so  as  to  keep 
the  river  in  its  channel,  so  that  the  large  volume  of  water  can  scour  the 
bottom  and  create  a  channel  fit  for  navigation,  then  that  is  clearly  within 
the  powers  of  the  Government.  In  like  manner,  when  the  needs  of  navi- 
gation demand,  it  is  competent  for  the  Government  to  maintain  the 
volume  and  regimen  of  rivers  required  for  commerce  by  laying  drains 
in  such  manner  as  to  maintain  a  flow  at  low- water  stages.  The  reclama- 
tion in  both  cases  is  simply  incidental  and  collateral. 

COMPENSATORY  PROJECTS 

Would  you  say  that  when  the  Government  goes  to  this  great  expendi- 
ture, which  involves  an  incidental  benefit  to  the  lands  of  private  owners, 
it  can  not  seek  in  some  way  compensation  to  the  fund  for  this  beneficial 
work,  and  thus  diminish  the  cost  of  the  primary  enterprise  ?  Can  not  the 
Government  by  cooperation  with  States,  by  cooperation  with  districts, 
so  organize  this  work  as  to  divide  the  cost  between  the  States  or  the  locali- 
ties affected  and  the  National  Government  ?  The  project  might  not  be 
feasible  at  all  unless  the  Government  could  diminish  the  cost  by  putting 
a  certain  amount  of  the  cost  upon  incidental  and  collateral  works  of  this 
kind.  And  so  this  great  plan  of  developing  a  river  for  navigation  may 
involve,  and  in  most  cases  does  involve,  the  actual  reclamation  of  large 
areas  of  swamp  land. 

WATER  POWER 

Now  we  come  to  the  question  of  water  power.  The  Government  will 
be  compelled  not  only  to  construct  dams  on  the  tributary  streams  for 
irrigation,  but  sometimes  on  the  great  river  itself  —  for  the  purpose  of 
constructing  locks  through  which  vessels  can  pass,  and  thus  avoid  danger- 
ous rapids.  If  the  Government  does  construct  such  a  dam  for  the  pur- 
pose primarily  of  promoting  navigation,  will  the  Senator  from  Colorado 
contend  that  the  Government  can  not  diminish  the  cost  of  the  enterprise 
by  selling  the  water  power  created  by  that  dam? 


598  AMERICAN   FEDERAL   GOVERNMENT 

Mr.  TELLER.    Does  the  Senator  want  me  to  answer  his  question  now  ? 

Mr.  NEWLANDS.    Yes. 

Mr.  TELLER.  That  is  the  very  point  I  wanted  to  bring  to  the  Senator's 
attention.  That  is  exactly  what  I  wish  to  deny.  The  Government  has 
not  any  power  under  the  Constitution,  for  any  purpose  whatever,  to  go 
into  business  of  that  character.  It  has  not  any  right  to  create  a  water 
power  and  sell  the  power.  If  the  State  did  not  interfere,  the  Govern- 
ment would  have  no  such  authority  under  the  Constitution.  But  the 
State,  if  it  had  a  proper  conception  of  its  rights,  would  not  allow  that  to 
be  done.  The  State  would  say  it  would  do  it  if  it  was  to  be  done ;  and 
if  the  Senator  will  pardon  me,  some  day  I  will  present  him  a  brief  on 
this  subject  which  I  think  will  convince  him  that  my  suggestions  are  fully 
supported  by  the  decisions  of  the  Supreme  Court  of  the  United  States. 

I  am  not  afraid  that  the  Senate  will  go  into  anything  of  that  kind.  But 
I  do  not  want  to  have  this  initial  step,  as  it  were,  in  this  waterway  business 
complicated  by  what  will  appear  to  those  who  study  the  law  on  the  sub- 
ject as  an  utter  impossibility. 

Mr.  NEWLANDS.  I  take  issue  with  the  Senator  upon  that  question. 
I  shall  be  very  glad  to  read  the  brief  to  which  he  has  referred  me,  but 
I  can  not  question  the  power  of  the  Government  to  build  a  dam  in  a 
river  for  the  purpose  of  constructing  locks  which  will  be  serviceable 
to  navigation. 

Mr.  TELLER.  The  Senator  has  no  business  to  put  me  in  that  category. 
I  have  never  suggested  that  the  Government  could  not  do  that. 

Mr.  NEWLANDS.    I  was  going  one  step  further. 

Mr.  TELLER.  I  say  most  emphatically  the  Government  may  do  that, 
but  the  Government  has  no  right,  then,  to  establish  an  electric-light  plant 
on  it  and  sell  the  light.  That  is -what  I  assert. 

Mr.  NEWLANDS.  If  the  Senator  had  heard  my  sentence  through,  I 
think  he  would  not  have  taken  exception  to  it.  I  will  repeat  part  of 
what  I  did  say  and  add  to  it  what  I  intended  to  say. 

I  do  not  doubt  for  a  moment  the  power  of  the  Government  to  con- 
struct a  dam  for  the  purpose  of  establishing  a  lock  which  will  be  service- 
able to  navigation. 

Mr.  TELLER.    Neither  do  I. 

Mr.  NEWLANDS.  Thus  far  the  Senator  agrees  with  me.  Now,  I  was 
going  to  add,  nor  do  I  doubt  the  power  of  the  Government  to  diminish 
the  cost  of  that  enterprise  to  the  Government  by  availing  itself  of  the 
sale  of  the  power  created  by  that  dam. 

Now,  another  thing.  If  the  Senator  insists  that  the  Government  can 
not  do  that  without  the  consent  of  the  Slate,  then  I  say  we  should  take 
steps  in  this  bill  for  obtaining  the  consent  of  the  State. 

Mr.  TELLER.  I  deny  the  right  of  the  Government  to  do  it  even  with 
the  consent  of  the  State.  This  Government  can  not  go  into  any  commer- 
cial business  of  that  kind. 


LEGISLATIVE   PROBLEMS  599 

Mr.  NEWLANDS.  I  would  not  expect  the  Government  to  go  into  the 
commercial  business  of  peddling  out  light 

Mr.  TELLER.    Or  water. 

Mr.  NEWLANDS.  Of  constructing  poles  and  stringing  wires  and  dis- 
tributing light  throughout  an  entire  community,  or  distributing  power 
throughout  an  entire  community,  but  I  do  contend  that  it  would  be 
entirely  within  the  governmental  function  to  diminish  the  cost  of  the 
great  work;  and  if  it  can  accomplish  that  result  by  some  method  of 
leasing  the  power,  at  the  same  time  so  controlling  the  lease  that  it  will 
not  result  in  monopoly  and  oppression,  I  should  say  it  had  that  power  as 
a  means  of  diminishing  the  cost  of  the  enterprise.1 

But  if  there  is  anything  in  our  dual  government  that  prevents  the  nation 
from  acting  without  the  consent  of  the  State,  then  I  see  no  reason  why 
the  two  sovereigns  affected  should  not  confer  together  about  the  matter 
—  the  Union  of  States,  the  one  sovereign,  the  individual  State  where 
the  dam  is  located,  the  other.  Can  we  doubt  that  they  would  come  to 
some  rational  conclusion  ?  Would  the  lesser  sovereign  deny  to  the  greater 
sovereign  the  right  to  get  a  value  out  of  that  which  it  itself  had  created 
that  would  be  in  a  measure  compensatory  of  its  own  expenditures  ?  The 
two  sovereigns  can  do  business  with  each  other  just  as  individuals  can; 
and  there  is  no  reason  why  the  Union  of  States  should  not  enter  into  an 
arrangement  with  an  individual  State  that  will  present  a  just  solution 
of  the  question.  If  the  State  has  the  property  rights,  for  which  the 
Senator  contends,  it  can  share  with  the  nation  the  burden  of  cost  of  a 
work  necessary  or  useful  for  both  navigation  and  power.  If  the  Govern- 
ment spends  millions  of  dollars  in  the  construction  of  a  dam,  it  should 
certainly  have  compensation  for  the  power  which  it  itself  has  created. 
Common  honesty  would  dictate  that. 

I  did  not  intend  at  this  time  to  discuss  the  question  of  governmental 
functions  at  all ;  it  is  a  matter  of  business,  and  that  is  what  I  hope  to  see 
established  as  the  basis  of  this  enterprise.  I  hope  to  see  this  great  work 
put  upon  a  business  basis.  I  believe  the  Government  can  do  work  in  a 
businesslike  way  in  carrying  out  the  granted  powers,  and  I  believe  in  giv- 
ing its  agents  a  pretty  free  hand  to  enable  them  to  do  business  effectively. 

1  In  fact,  that  is  just  what  the  Government  is  doing  now,  and  has  done  for  several 
years,  under  statutory  authority.  The  legislation  has  so  often  been  repeated  and  has  so 
long  remained  unquestioned  that  the  governmental  policy  with  respect  to  water  power  may 
be  regarded  as  established.  Under  this  policy  the  Federal  Government  reserves  the 
right,  when  authority  is  given  to  private  corporations  to  dam  actually  or  possibly  navigable 
streams  for  the  development  of  power,  to  use  without  charge  so  much  of  that  power  as 
may  be  required  for  specific  uses  by  the  Government,  this  reservation  being  in  the  nature 
of  a  consideration.  When  the  works  are  constructed  cooperatively  between  the  Federal 
Government  and  prospective  powers  users,  then  the  Government  reserves  rights  of 
administration  and  specific  uses,  and  also  limits  the  lease  or  authority  to  the  private  party  • 
to  use  the  power  to  a  specified  period ;  while,  if  the  work  is  constructed  at  the  cost  of  the 
Federal  Government,  then  the  statutes  authorize  the  leasing  of  the  power  developed 
thereby  under  customary  governmental  restrictions  as  to  advertising,  etc. 


6oo,  AMERICAN   FEDERAL   GOVERNMENT 

The  reason  why  I  present  this  bill  now  is  because  I  fear  that  in  the 
future  should  we  enter  upon  this  work  Congress  may  without  consider- 
ing these  related  questions  of  use  and  compensation  and  cooperation  put 
the  administrative  agents  of  the  Government  in  a  strait- jacket  and  thus 
prevent  them  from  conducting  the  work  in  a  businesslike  way. 

I  do  not  intend,  Mr.  President,  to  be  drawn  off  into  nice  refinements 
as  to  constitutional  power.  I  do  not  propose  to  balance  the  power  of  the 
National  Government  with  the  power  of  the  State  in  an  individual  matter. 
Here  is  an  enterprise  which  is  of  the  greatest  importance  to  the  entire 
country.  We  propose  in  aid  of  the  development  of  commerce  between 
the  States,  and  commerce  with  foreign  nations,  exclusively  within  the 
jurisdiction  of  the  National  Government,  to  enter  upon  this  great  work 
of  utilizing  our  rivers  in  a  businesslike  way  for  every  beneficial  purpose 
to  which  they  can  be  put. 

We  must  realize  that  it  is  not  wise  to  take  up  simply  one  use  of  the 
river,  for  navigability,  and  lose  sight  of  all  the  other  uses,  when  the 
adoption  of  the  other  uses  and  the  development  of  the  other  uses  will 
diminish  the  cost  of  the  enterprise  and  make  it  more  efficient  for  the 
public  good.  The  cost  might  be  entirely  prohibitory  if  it  were  not  for 
the  correlated  uses  and  the  contribution  or  compensation  secured  through 
them,  for  this  is  a  work  which  can  be  accomplished  either  by  the  National 
Government  itself  or  by  the  cooperation  of  the  National  Government 
with  States,  with  corporations,  with  municipalities,  and  with  individuals. 

CLARIFICATION  OF  STREAMS 

We  can  not  only  take  up  this  question  of  the  utilization  of  water  power 
beneficial  to  the  entire  people,  and  with  a  view  to  economy  in  the  enter- 
prise itself,  but  we  can  take  up  with  it  the  question  of  the  clarification 
of  the  streams.  That  is  a  matter,  you  say,  of  sanitation,  affecting  the 
people  of  the  towns  and  cities  along  the  borders  of  the  streams.  But 
you  must  recollect  that  these  great  rivers  are  full  of  sediment  and  sand, 
every  particle  of  which  is  a  destructive  tool  when  directed  against  the 
banks  of  the  river.  Clear  waters  are  not  nearly  so  destructive  or  ob- 
structive as  muddy  waters,  as  water  filled  with  sand  or  soil.  It  is  well 
demonstrated  that  every  particle  of  soil,  every  particle  of  sand  in  the 
water,  is  a  destructive  agent.  When  deposited  in  the  shoals  and  bars  it 
obstructs  the  channel.  When  suspended  in  the  water  and  driven  by  the 
force  of  the  current  against  the  banks  of  the  river  it  breaks  them  down, 
and  the  broken  bank  carried  down  in  the  current  sinks  within  a  few 
miles  and  makes  the  shoal  or  bar. 

What  do  we  find  in  the  great  rivers  that  pass  through  alluvial  bottoms  ? 
The  banks  dissolve  like  sugar  when  the  force  of  the  water  is  directed 
against  them.  A  capricious  stream  like  the  Missouri  River  makes  its 
way  through  a  bottom  of  this  kind  from  Kansas  City  to  St.  Louis,  a 


LEGISLATIVE   PROBLEMS  601 

distance  of  about  300  miles,  a  valley  from  4  to  10  miles  in  width,  bounded 
by  bluffs  on  either  side;  and  that  river,  during  the  period  of  flood,  its 
banks  dissolving  like  sugar  before  the  force  of  the  water,  can  make  its 
way  anywhere  in  the  alluvial  bottom  between  the  bluffs,  so  that  the  farm 
of  to-day  becomes  the  swamp  to-morrow,  and  the  river  bed  of  to-day 
becomes  the  cultivated  farm  to-morrow. 

We  can  clarify  that  turgid  water,  swollen  with  sediment  and  sand. 
How  ?  By  the  prevention  of  soil  waste  and  by  the  protection  of  the  banks 
by  willow  and  stone  revetment.  There  washes  down  the  Mississippi 
River  every  year  pretty  nearly  a  continent  of  the  best  soil.  At  New 
Orleans  to-day,  the  alluvial  soil  is  twelve  hundred  feet  deep. 

The  great  problem  we  have  had  in  the  lower  reaches  of  the  Mississippi 
has  been  the  control  of  the  passes,  the  river  making  its  way  to  the  Gulf 
through  three  passes,  building  up  on  either  side,  by  the  deposit  of  sand 
and  sediment,  a  continent.  So  it  is  hardly  an  exaggeration  to  say  that 
in  time  the  great  Gulf  itself  will  become  a  continent. 

Now,  is  the  Government  simply  to  dredge  out  that  sand  and  sediment 
when  it  settles  down  in  the  bed  of  the  stream  and  deposit  it  somewhere 
else,  whence  it  will  make  its  way  gradually  back  to  the  stream,  or  can  it 
take  measures  to  prevent  that  sediment  and  sand  from  coming  into  the 
stream?  Can  it  not  take  measures  to  prevent  this  soil  waste  and  this 
bank  destruction?  It  is  fair  to  say  that  in  time  the  prevention  of  soil 
waste  can  be  brought  about  by  proper  methods  of  cultivation  enjoined 
by  the  National  Government,  perhaps  as  a  matter  of  persuasion  at  first, 
though  it  might  well  become  a  matter  of  compulsion.  The  conservation 
and  development  of  the  natural  resources  of  the  country  —  the  forest, 
the  land,  the  water  —  for  every  purpose  require  the  scientific  treatment 
of  a  stream  and  the  full  consideration  of  every  related  use. 

How  is  this  to  be  done  ?  In  the  first  place,  this  fund  is  created  to  which 
I  have  referred,  a  fund  for  uninterrupted  and  continuous  work,  the  dedi- 
cation of  $50,000,000  immediately  to  this  work.  The  Senator  from 
Idaho  says  it  may  lie  idle  for  a  time.  There  is  $250,000,000  or 
$300,000,000  in  the  Treasury  now  that  is  lying  idle.  The  Treasury 
deposits  a  large  portion  of  it  in  banks  of  the  country  and  receives  no 
compensation  from  it.  It  will  be  no  more  idle  than  it  is  now. 

It  is  incumbent  upon  us  to  show  our  fixed  and  determined  purpose 
that  this  work  shall  commence,  and  that  it  shall  be  prosecuted  without 
interruption,  and  not  in  the  elusive  and  disjointed  way  in  which  it  has 
been  prosecuted  heretofore. 

AN  ADMINISTRATIVE  MATTER 

Now,  this  bill  gives  the  executive  department  great  power,  and  I  have 
no  doubt  that  objection  will  be  urged.  I  believe  in  giving  the  executive 
department  full  power  in  this  matter,  because  it  is  an  administrative 


602  AMERICAN  FEDERAL   GOVERNMENT 

matter.  I  believe  in  preserving  the  boundaries  of  the  functions  of  the 
Government ;  and  I  insist  upon  it  that  Congress  has  attended  too  much 
to  administrative  matters,  and  the  very  reason  of  the  inefficiency  of  our 
work  upon  our  rivers  and  harbors  has  been  that  Congress  has  sought 
to  do  administrative  work  and  has  done  it  badly,  as  it  always  will  do  it 
badly. 

Ninety  men  in  the  Senate  and  four  hundred  or  more  in  the  House 
working  on  legislation  for  the  country  do  not  constitute  efficient  bodies 
for  administrative  work.  Wherever  administrative  work  is  to  be  done 
I  believe  in  intrusting  it  to  the  executive  department  and  putting  the 
responsibility  upon  the  Executive.  We  did  this  with  reference  to  the 
reclamation  act.  After  having  educated  the  entire  country  to  the  desir- 
ability of  entering  upon  the  great  reclamation  work,  the  Western  men 
found  that  they  were  unable  to  move  because  they  were  divided  among 
themselves  as  to  what  should  be  done.  Each  man  wanted  a  project  first 
undertaken  in  his  own  State  and  was  unwilling  to  concede  that  another 
State  had  superiority  or  advantage  as  to  priority.  We  were  in  confusion 
as  to  the  methods  of  administration.  Finally  we  got  together,  and  what 
did  we  conclude  to  do  ?  We  passed  a  bill  creating  a  fund  derived  from 
the  sales  of  the  public  lands  of  the  country  and  dedicated  that  fund  for- 
ever to  this  work.  Then  we  gave  the  power  to  the  Secretary  of  the 
Interior  to  go  ahead  and  investigate  the  projects  and  if  he  found  them 
feasible,  to  do  the  work,  and  the  only  limitation  put  upon  his  power  was 
that  he  should  not  let  a  contract  unless  the  money  for  its  payment  was 
in  the  fund.  That  was  the  only  limitation.  We  did  not  go  into  details 
regarding  the  organization.  There  can  be  no, effective  organization 
which  is  not  the  result  of  the  process  of  evolution.  Let  Congress  attempt 
to  organize  at  the  start  a  great  working  force  of  this  kind,  and  it  will 
always  fail.  They  will  have  to  come  back  to  Congress  for  amendatory 
and  supplementary  legislation,  all  delaying  the  prosecution  of  the  work. 
We  did  the  simple  thing  and  put  the  responsibility  upon  the  Secretary 
of  the  Interior,  and  the  Secretary  of  the  Interior  accepted  the  responsibility 
and  held  the  responsibility.  Congress  of  course  reserved  to  itself  all  the 
powers  of  supervision,  of  criticism,  of  examination.  Reports  were  re- 
quired. The  officers  of  the  Service  were  compelled  to  come  before  the 
committees  and  give  full  expositions  of  their  work.  Committees  visited 
the  works  themselves  and  made  actual  inspection,  and  then  upon  their 
return  to  Congress  summoned  the  officials  before  them  and  examined 
them  upon  matters  concerning  which  they  desired  information. 

So  the  whole  service,  under  the  critical  eye  of  Congress,  but  with  full 
powers  of  administration,  has  advanced  and  accomplished  a  great  work. 
It  has  in  the  short  period  of  its  existence  removed,  I  believe,  twice  as 
many  cubic  yards  of  earth  as  have  been  removed  in  the  Panama  Canal. 
It  has  constructed  works  of  great  magnitude  and  has  considered  problems, 
many  of  which  were  as  difficult  as  those  involved  in  the  Panama  construe- 


LEGISLATIVE   PROBLEMS  603 

tion.  We  have  organized  in  the  Reclamation  Service  a  body  of  skilled 
engineers  capable  of  undertaking  any  work  of  construction  from  the 
construction  of  a  canal  to  the  construction  of  a  railroad  and  the  develop- 
ment of  the  inland  waterways  themselves. 

So  it  was  with  the  Panama  construction.  Accidentally  we  blundered 
there  into  wise  legislation.  Congress  was  divided  into  contending  forces 
as  to  whether  we  should  have  the  canal  at  Panama  or  at  Nicaragua.  Dif- 
ferent views  prevailed  as  to  whether  it  should  be  a  lock  canal  or  a  sea- 
level  canal.  There  would  have  been  the  widest  divergence  of  views  as 
to  all  the  details  of  operation.  But  in  the  confusion  a  simple  bill,  I  be- 
lieve drawn  by  Senator  Spooner  of  Wisconsin,  appropriated  $50,000,000 
for  the  work  and  gave  the  President  full  power  to  go  ahead  and  do  it. 
We  all  know  how  that  has  worked  out. 

Suppose  we  had  started  in  the  first  place  and  insisted  upon  it  that  all 
the  plans  should  be  submitted  to  committees  of  Congress  with  their 
differences  of  opinion,  and  to  Congress  itself  with  their  differences  of 
opinion,  we  would  have  been  debating  to-day  over  mere  matters  of 
detail.  But  out  of  the  very  necessity  of  the  situation,  inasmuch  as  Con- 
gress was  unable  to  agree,  a  simple  bill  was  prepared  which  gave  the 
President  full  power.  Does  anyone  contend  that  the  President  has 
abused  that  power?  Is  there  any  President  whom  we  can  elect  who  will 
be  so  dishonest  or  so  inefficient  as  to  abuse  that  power?  He  has  gone 
about  in  a  businesslike  way  to  create  an  organization,  each  organization 
in  itself  tentative  at  the  start.  I  believe  the  Panama  Canal  service  has 
been  reorganized  three  times.  First  we  had  the  Walker  Commission, 
and  then  we  had  the  Shonts  Commission,  and  then  we  had  the  Goethals 
Commission,  a  commission  the  same  in  number,  authorized,  I  believe,  by 
Congress,  but  maintained  in  organization  at  the  will  of  the  Executive. 
We  were  probably  unwise  in  compelling  the  Executive  to  have  a  com- 
mission of  nine  men.  He  himself  in  a  recent  message  or  in  a  recent 
speech  has  indicated  that  perhaps  a  more  efficient  method  of  organiza- 
tion would  be  one  commissioner,  with  subordinates,  so  that  one  person 
could  be  held  responsible  for  the  work. 

The  first  two  commissions  held  their  sessions  here.  The  last  com- 
mission is  located  in  Panama,  and  consists  mainly  of  officers  of  the 
Government,  an  engineer  officer  of  the  Army,  an  engineer  officer  of  the 
Navy,  and  a  medical  officer  of  the  Army,  who  has  done  the  sanitation 
work  of  that  district.  After  various  experiments  the  President  has 
placed  the  control  of  the  work  in  the  Engineer  Corps  of  the  Army,  noted 
for  its  efficiency,  integrity,  and  high  sense  of  honor  —  a  corps  which  has 
been  compelled  thus  far  to  adapt  itself  to  the  repressive  policy  of  the 
nation  as  to  rivers  and  harbors,  but  which,  under  a  progressive  policy 
and  aided  by  the  other  scientific  services  of  the  Government  in  matters 
relating  to  their  jurisdiction,  will  accomplish  as  brilliant  a  work  in  our 
inland  waterways  as  it  is  now  accomplishing  at  Panama.  We  have  given 


604  AMERICAN   FEDERAL   GOVERNMENT 

the  Executive  a  free  hand,  and  we  have  been  wise  in  giving  him  a  free 
hand.  Had  we  sought  to  impose  upon  him  Congressional  restraints 
and  put  him  in  a  Congressional  strait- jacket,  the  work  would  not  have 
advanced  as  it  has  advanced. 

So  I  contend  that  in  this  case  we  should  give  the  President  the  power 
not  only  to  enter  upon  the  construction  of  the  work,  but  to  make  the  ex- 
aminations and  the  surveys,  and  to  do  it  without  further  authority  from 
Congress,  and  to  appoint  such  boards  and  commissions  and  agents  and 
experts  as  in  his  judgment  may  seem  proper,  and  to  fix  their  salaries 
until  Congress  fixes  them.  The  organization  can  best  be  worked  out 
by  an  executive  officer  and  not  through  the  wisdom  of  Congress. 

It  will  be  observed  that  the  Forest  Service,  the  Reclamation  Service 
and  the  Panama  Canal  Service  are  all  engaged  in  a  variety  of  works 
incidental  to  the  main  enterprises,  and  they  are  engaged  not  only  in 
constructing  them,  but  in  operating  them.  Such  works  include  water- 
works, electric-light  plants,  roads,  railroads,  electric  roads,  cement  mills, 
and  other  works  of  similar  character,  all  incidental  and  collateral  to  the 
main  enterprises. 

Can  it  be  maintained  that  the  Government  should  have  less  power 
when,  in  the  interest  of  interstate  and  foreign  commerce,  it  enters  upon 
the  artificialization  of  rivers  and  the  construction  of  canals? 

It  will  also  be  observed  that  the  Panama  Canal  Service  is  to  be  made 
compensatory  by  the  charging  of  tolls,  the  Forest  Service  by  the  sale 
of  timber  and  by  charges  for  grazing  permits,  and  the  Reclamation 
Service  by  the  sale  of  water  rights.  So  far  as  the  Forest  Service  and  the 
Reclamation  Service  are  concerned,  they  will  be  absolutely  self-com- 
pensatory. In  the  case  of  the  Inland  Waterways  Service  it  is  proposed 
that  the  artificialized  rivers  and  canals  shall  be  free  to  navigation  and 
that  no  tolls  shall  be  imposed.  Is  it  not,  therefore,  of  all  the  more  im- 
portance that  the  collateral  work's  undertaken  by  this  service  through 
other  appropriate  services  of  the  Government  for  the  purpose  of  fully 
developing  every  profitable  and  beneficial  use  of  our  rivers  shall  be  made 
self-compensatory  as  far  as  practicable  and  that  wherever  the  coopera- 
tion of  States,  municipalities,  communities,  corporations,  or  individuals 
is  necessary  to  accomplish  this  purpose,  such  cooperation  shall  be 
secured?  No  one  can  measure  the  future  value  of  the  water  power  of 
the  country  in  the  development  of  electricity.  It  is  probable  that  this 
new  force  has  a  future  value  equal  to  that  of  all  the  coaLsupplies  of  the 
country. 

In  organizing  this  great  work,  an  ample  fund  should  be  immediately 
provided  and  as  free  a  hand  as  possible  given  to  the  Executive.  In  the 
case  of  the  Reclamation  Service,  the  method  of  securing  a  revolving 
fund  from  the  proceeds  of  the  sales  of  public  lands  and  of  water  rights 
has  proven  an  incentive  and  an  inspiration  to  the  best  efforts  of  these 
in  charge  of  the  work.  The  methods  are  those  of  a  business  house  which 


LEGISLATIVE   PROBLEMS  605 

knows  its  condition  at  all  times.  Under  such  a  method  the  Government 
organization  knows  just  what  to  depend  upon.  It  can  plan  for  the  future 
and  look  ahead  without  uncertainty  as  to  the  size  of  appropriations. 
Furthermore,  it  is  inspired  to  work  for  practical  results,  for  early  and 
considerable  returns  which,  by  the  application  of  business  methods,  can 
be  again  applied  to  produce  more  returns.  No  questions  of  such  magni- 
tude, where  a  long  look  ahead  is  necessary  and  a  comprehensive  plan  for 
the  future  imperative,  should  be  hampered  at  its  beginning  by  uncertainty 
of  Congressional  action.  Those  in  charge  should  know  at  all  times  on 
what  they  can  depend  and  what  results  are  expected  of  them.  It  is 
therefore  essential  that  an  ample  fund  should  be  provided  and  that  pro- 
vision should  be  made  for  its  replenishment  by  the  sale  of  bonds  when- 
ever Congressional  appropriation  fails.  As  free  a  hand  as  possible  in 
organization  should  be  given,  and  particularly  during  the  first  few  years. 
After  the  organization  is  perfected  and  its  work  reduced  to  a  system, 
then  Congress  can,  if  it  chooses,  substitute  the  old  plan  of  Congressional 
initiative  as  to  investigation,  as  to  projects,  and  as  to  construction  in 
each  particular  case. 

BREAKING  DOWN  OF  THE  RAILWAY  SYSTEM 

Mr.  NEWLANDS.  I  wish  to  add  that  this  question  of  waterway  trans- 
portation is,  of  course,  only  a  part  of  the  general  subject  of  transporta- 
tion. The  railway  service  of  the  country  is  much  broken  down.  The 
railroads  of  the  country,  when  there  was  less  business  than  there  is  now, 
sought  to  increase  their  tonnage  by  carrying  cheap  and  bulky  products 
long  distances  at  low  prices,  and  they  thus  entered  upon  a  carriage 
which  has  been  mainly  absorbed  in  other  countries  by  waterways.  This 
bulky  carriage  has  absorbed  so  large  a  proportion  of  their  facilities  that 
suddenly,  with  the  great  increase  in  production  and  population,  they 
found  themselves  unable  to  meet  the  demands  of  the  country.  At  that 
time  an  agitation  arose  for  the  regulation  of  rates  and  for  the  better  con- 
trol of  the  railroads  themselves.  The  railroads,  on  the  one  side,  regarded 
their  properties  as  private  properties  and  resented  legislative  intrusion. 
The  people,  on  the  other  hand,  regarded  them  as  public  servants  charged 
by  the  law  with  the  performance  of  public  duties,  entitled  only  to  a  just 
compensation,  that  compensation  to  be  fixed  by  the  public  either  in  the 
shape  of  tolls  or  the  limitation  of  return  upon  capital  in  the  shape  of 
dividends.  That  contest  has  not  yet  reached  the  end. 

The  railroads  have  now  reached  the  point  where  they  admit  in  some 
degree  the  powers  and  the  rights  of  the  public.  They  now  talk  about 
cooperation ;  they  will  talk  later  on  about  obedience ;  and  obedience  is 
what  the  American  people  demand.  The  only  limitation  upon  the  power 
of  the  American  people  over  the  highways  and  over  common  carriers 
is  that  the  legislation  shall  not  be  confiscatory  in  character.  That  con- 


606  AMERICAN   FEDERAL   GOVERNMENT 

test  is  not  yet  ended.  Meanwhile  the  finances  of  the  railroads  have  been 
embarrassed;  rates  of  interest  have  gone  up;  and  the  very  agitation 
which  has  gone  on  has  affected  their  negotiations  in  foreign  countries 
for  cheap  money.  They  have  been  unable,  even  if  they  willed  it,  to  keep 
up  with  the  necessary  construction  in  order  to  meet  the  demands  of  in- 
creasing population  and  of  business.  One  eminent  railway  man  declares 
that  it  will  be  necessary  for  these  railroads  to  expend,  I  believe,  within 
the  next  five  years,  five  and  one-half  billions  of  money  in  order  to  meet 
the  requirements  of  the  country.  We  all  realize  that  it  is  now  impossible 
for  them  to  get  the  money.  We  might  enable  them  to  get  the  money  if 
we  stopped  this  agitation ;  but  the  American  people  will  not  rest,  what- 
ever may  be  the  consequences,  until  the  true  status  of  the  common 
carrier  is  ascertained  and  determined  as  that  of  a  public  servant.  So 
that  we  cannot  hope  for  such  conditions  as  will  enable  them  to  finance 
the  construction  that  is  necessary.  It  is  therefore  of  great  importance 
that  we  should  develop  these  waterways  and  that  we  should  develop 
them  quickly. 

COORDINATION  or  RAIL  AND  WATER  TRANSPORTATION 

It  would  startle  the  country,  perhaps,  if  we  were  to  say  that 
$100,000,000  annually  for  the  next  five  years  should  be  expended;  but 
I  believe  it  ought  to  be  expended  in  order  to  meet  the  requirements  of 
transportation,  and  the  public  mind  must  become  accustomed  to  it. 
After  it  is  all  expended  the  business  of  the  railroads  will  not  be  injured. 
They  will  have  more  than  they  can  then  carry,  and  their  carriage  will 
be,  of  products  more  compensatory  than  the  cheap  and  bulky  products 
that  will  be  carried  by  water  transportation. 

We  have  had  a  most  marvelous  railroad  development  in  this  country, 
which  has  surpassed  that  of  any  other  part  of  the  world.  But  our  de- 
velopment has  not  been  as  rational,  as  comprehensive,  and  as  scientific 
in  the  matter  of  transportation  as  has  that  of  Germany.  Her  railway 
transportation,  her  river  and  canal  transportation,  and  her  ocean  trans- 
portation have  been  dovetailed  together  in  such  a  fashion  as  to  make  her 
carriers  the  most  efficient  servants  of  production  and  of  commerce  in 
the  world. 

This  movement  is  not  one  of  hostility  to  the  railroads.  It  is  one  that 
supplements  the  railroad  system  of  the  country.  If  we  can  add  to  our 
ocean  service  so  that  that  ocean  service  and  the  river  and  canal  service 
and  the  railroad  service  of  the  country  will  act  in  cooperation  as  the  hand- 
maidens of  production  and  commerce,  we  shall  have  marvelous  results. 

After  we  get  these  waterways  developed  the  question  then  will  be, 
How  shall  we  administer  them  ?  Are  the  railroads  to  be  allowed  to  put 
down  their  rates  during  the  navigation  season  to  the  destruction  of  their 
river  competitors  and  to  put  them  up  during  the  winter  season  when  that 


LEGISLATIVE    PROBLEMS  607 

competition  ceases?  Shall  we  permit  one  public  servant  to  destroy 
another  public  servant  necessary  to  the  public  good  ?  We  might  crowd 
these  rivers  with  boats,  but  capital,  regardful  of  the  bitter  experience  of 
the  past,  will  hesitate  to  enter  upon  the  enterprise.  As  we  passed  down 
the  Mississippi  River  we  hardly  saw  a  boat.  On  both  sides  of  the  river 
we  saw  long  trains  of  cars  carrying  the  products  to  the  country.  If  the 
railroads  refuse  to  act  in  cooperation  with  the  rivers  in  the  future,  as 
they  have  in  the  past,  they  may  paralyze  the  very  instrumentalities 
which  we  create  for  interstate  and  foreign  commerce. 

We  must  ourselves  —  the  nation  must  —  create  the  corporations  that 
are  to  act  as  waterway  carriers.  We  should  not  submit  the  incorporation 
of  these  great  public  servants  engaged  in  interstate  carriage  to  the  shift- 
ing legislation  of  46  different  States.  There  is  no  river  boat  that  on  its 
course  will  not  in  going  from  bank  to  bank  move  from  one  State  to 
another  in  interstate  commerce.  The  nation  should  create  its  own 
public  corporate  servants,  and  we  should  protect  them. 

We  may  find  it  necessary  in  creating  these  instrumentalities  of  inter- 
state commerce  to  exempt  them  from  taxation,  State  and  national,  for 
a  limited  period.  The  power  is,  in  my  judgment,  clear.  The  nation 
can  certainly  exempt  them  from  its  own  taxation,  and  can  refuse  to  per- 
mit a  sovereign  State,  without  the  nation's  consent,  to  place  a  burden 
that  might  be  destructive  upon  a  national  instrumentality.  We  may 
have  to  protect  them  against  unfair  and  unjust  competition.  We  may 
have  to  compel  the  coordination  of  the  railroads  with  them.  The  rail- 
roads to-day  have  all  the  terminal  facilities  upon  the  rivers.  They  have 
the  depots  and  the  stations  and  the  tracks.  They  have  all  the  spaces 
that  will  be  required  for  river  commerce.  The  nation  cannot  permit 
these  national  instrumentalities  to  be  subject  to  the  caprice  of  self- 
ish interests. 

All  this  can  be  adjusted  if  we  only  go  further  and  provide  that  as  to 
the  great  national  system  of  railways,  eight  or  ten  in  number,  each  one 
of  them  having  from  ten  to  twenty  thousand  miles  of  track  and  traversing 
between  fifteen  and  twenty  States  —  these  mergers  shall  come  under  a 
national  charter.  We  shall  then  ourselves  have  created  the  public  agents 
of  the  nation  the  servants  of  the  nation  for  the  adequate  development  of 
interstate  and  foreign  transportation. 

THE  NATIONAL  POWERS 

It  may  be  said  that  we  have  not  the  power  to  compel  the  merger  of 
such  corporations  under  a  national  charter.  I  admit  that  we  can  not 
forcibly  go  into  a  State  and  compel  a  State  to  force  a  State  corporation 
to  come  within  the  national  merger,  but  the  nation  can  authorize  public 
carriers,  common  carriers,  incorporated  under  its  laws,  to  construct  new 
interstate  lines,  and  it  can,  by  the  process  of  persuasion,  induce  the  States, 


6o8  AMERICAN   FEDERAL   GOVERNMENT 

driven  by  the  demands  of  their  own  people,  to  permit  these  parts  of 
great  interstate  systems  to  get  together  under  one  national  control  and 
charter. 

The  change  will  not  mean  an  invasion  of  the  powers  and  rights  of  the 
States.  At  present  we  have  State  corporations  engaging  also  in  inter- 
state transportation.  Is  it  not  just  as  logical  to  have  national  interstate 
corporations  engage  in  State  transportation?  The  same  public  agent, 
whether  State  or  national,  can  now  engage  in  both  State  and  interstate 
transportation.  As  to  the  former  it  would  be  subject  to  the  State  regu- 
lation ;  as  to  the  latter  it  would  be  subject  to  national  regulation,  whether 
the  corporate  agent  were  incorporated  under  State  or  national  charter. 
Nor  would  the  police  powers  of  the  States  or  the  jurisdiction  of  the  State 
courts  be  affected  by  national  charter.  The  National-bank  Act,  under 
which  the  jurisdiction  of  State  courts  is  maintained,  is  an  illustration  of 
that.  If  we  can  nationally  incorporate  these  great  railway  carriers,  and 
if  we  can  nationally  incorporate  river  carriers,  and  if  we  can  nationally 
incorporate  ocean  carriers,  the  entire  people  will  then  have  these  public 
servants  under  their  control,  and  by  the  unity  and  simplicity  of  the 
operation  the  service  can  be  made  profitable  to  the  carriers,  just  to 
the  public,  and  efficient  in  the  promotion  of  interstate  and  foreign 
commerce. 

I  am  aware  that  some  of  my  friends  call  this  a  centralization  of  power. 
Some  of  my  friends  on  this  side  of  the  House  are  accustomed  to  apply 
that  term  to  any  power  which  is  exercised  by  the  National  Government. 

The  National  Government  has  not,  in  my  judgment,  commenced  to 
exercise  its  powers  under  the  interstate  commerce  clause  of  the  Consti- 
tution. It  has  been  prevented  from  exercising  the  powers  which  the 
people  granted  to  the  nation  for  a  beneficent  purpose.  The  main  pur- 
pose of  the  formation  of  the  Union  was  to  unite  all  the  States  in  matters 
relating  to  the  national  defense  and  to  the  protection  of  interstate  and 
foreign  commerce.  The  development  of  interstate  and  foreign  commerce 
was  the  primary  cause  of  the  Constitution  and  of  the  Union.  The 
growth  of  transportation  has  been  an  accidental  growth  from  a  point  in 
one  State  to  another  point  in  the  same  State.  Gradually  this  accidental 
growth  has  advanced  until,  either  under  the  laws  of  the  States,  or  out- 
side of  the  law,  or  against  the  law,  or  in  evasion  of  the  law,  great  systems 
of  railways  have  been  in  fact,  though  not  in  law,  nationalized,  unionized, 
running  almost  from  the  Atlantic  to  the  Pacific  and  from  the  Lakes  to 
the  Gulf.  Will  any  one  deny  that  the  combination  has  been  beneficial, 
whatever  we  may  say  about  the  methods  employed,  about  the  capitali- 
zation issued,  about  the  power  in  politics  exercised  by  these  great 
political  masters  that  ought  to  be  public  servants? 

Would  you  to-day  enter  upon  a  process  of  decentralization?  Would 
you  attempt  to  divide  these  systems  up  into  the  units  of  which  they  were 
once  composed,  each  unit  comprised  within  State  lines  ?  You  would  not  ? 


LEGISLATIVE   PROBLEMS  609 

Then  legalize  them  under  proper  restraints  as  to  capitalization,  under 
proper  restraints  as  to  profits,  and  legalize  them  by  the  action  of  the  only 
sovereign  capable  of  dealing  with  the  question. 

NOT  CENTRALIZATION,  BUT  UNIONIZATION 

Centralization  I  Is  that  the  right  term?  I  should  say  "unionization." 
The  exercise  of  the  granted  powers  of  the  Constitution  does  not  involve 
the  centralization  of  power.  It  involves  simply  the  unionizing  of  the 
forces  of  the  entire  people  of  the  country  in  matters  clearly  intrusted  to 
the  Union  of  States.  This  union  is  composed  of  forty-six  States.  We  are 
all  parts  of  this  Union.  This  nation  is  not  a  separate  entity  afar  off, 
exercising  jurisdiction  and  control  and  dominion  without  our  partici- 
pation in  it.  The  States  constitute  this  Union;  and  they  entered  into 
this  Union  for  certain  beneficiarpurposes,  one  of  which  was  the  advance- 
ment of  interstate  and  foreign  commerce.  That  involves  the  creation 
of  the  instrumentalities  for  interstate  and  foreign  commerce,  the  creation 
of  the  public  servants  that  are  to  engage  in  interstate  and  foreign  com- 
merce by  the  nation  and  not  by  a  single  State  of  the  least  public  virtue, 
absolutely  controlled  by  the  corporate  carriers,  who  ought  to  be  the 
servants  of  the  nation.  There  is  no  centralization  about  it.  We  unionize 
the  forces  of  the  nation  under  the  powers  granted  to  the  nation,  of  which 
each  State  forms  a  component  part.  If  the  States  were  all  separate, 
then  would  they  not  have  to  get  together  by  treaty  and  settle  many  mat- 
ters? We  have  the  best  kind  of  treaty  making  under  our  system,  the 
treaty  making  of  this  legislative  body  and  the  other  legislative  body  — 
the  Congress  of  the  United  States  —  a  permanent  treaty-making  Con- 
gress, imposing  its  will  upon  each  one  of  the  forty-six  sovereign  States  in 
matters  intrusted  to  it  for  final  determination. 


39 


XI 
ARMY   AND    NAVY 

FROM  PRESIDENT  ROOSEVELT'S  MESSAGE,  DECEMBER  3 

1907 

The  Army.  Not  only  there  is  not  now,  but  there  never  has  been,  any 
other  nation  in  the  world  so  wholly  free  from  the  evils  of  militarism  as 
is  ours.  There  never  has  been  any  other  large  nation,  not  even  China, 
which  for -so  long  a  period  has  had  relatively  to  its  numbers  so  small  a 
regular  army  as  has  ours.  Never  at  any  time  in  our  history  has  this 
nation  suffered  from  militarism  or  been  in  the  remotest  danger  of  suffer- 
ing from  militarism.  Never  at  any  time  of  our  history  has  the  Regular 
Army  been  of  a  size  which  caused  the  slightest  appreciable  tax  upon  the 
tax-paying  citizens  of  the  Nation.  Almost  always  it  has  been  too  small 
in  size  and  underpaid.  Never  in  our  entire  history  has  the  Nation  suf- 
fered in  the  least  particular  because  too  much  care  has  been  given  to  the 
Army,  too  much  prominence  given  it,  too  much  money  spent  upon  it,  or 
because  it  has  been  too  large.  But  again  and  again  we  have  suffered 
because  enough  care  has  not  been  given  to  it,  because  it  has  been  too 
small,  because  there  has  not  been  sufficient  preparation  in  advance  for 
possible  war.  Every  foreign  war  in  which  we  have  engaged  has  cost  us 
many  times  the  amount  which,  if  wisely  expended  during  the  preceding 
years  of  peace  on  the  Regular  Army,  would  have  insured  the  war  ending 
in  but  a  fraction  of  the  time  and  but  for  a  fraction  of  the  cost  that  was 
actually  the  case.  As  a  Nation  we  have  always  been  shortsighted  in 
providing  for  the  efficiency  of  the  Army  in  time  of  peace.  It  is  nobody's 
especial  interest  to  make  such  provision  and  no  one  looks  ahead  to  war 
at  any  period,  no  matter  how  remote,  as  being  a  serious  possibility; 
while  an  improper  economy,  or  rather  niggardliness,  can  be  practiced  at 
the  expense  of  the  Army  with  the  certainty  that  those  practicing  it  will 
not  be  called  to  account  therefor,  but  that  the  price  will  be  paid  by  the 
unfortunate  persons  who  happen  to  be  in  office  when  a  war  does  actually 
come. 

I  think  it  is  only  lack  of  foresight  that  troubles  us,  not  any  hostility 
to  the  Army.  There  are,  of  course,  foolish  people  who  denounce  any 
care  of  the  Army  or  Navy  as  "militarism,"  but  I  do  not  think  that  these 

610 


ARMY   AND   NAVY  611 

people  are  numerous.  This  country  has  to  contend  now,  and  has  had  to 
contend  in  the  past,  with  many  evils,  and  there  is  ample  scope  for  all 
who  would  work  for  reform.  But  there  is  not  one  evil  that  now  exists,  or 
that  ever  has  existed  in  this  country,  which  is,  or  ever  has  been,  owing  in 
the  smallest  part  to  militarism.  Declamation  against  militarism  has  no 
more  serious  place  in  an  earnest  and  intelligent  movement  for  righteous- 
ness in  this  country  than  declamation  against  the  worship  of  Baal  or 
Astaroth.  It  is  declamation  against  a  non-existent  evil,  one  which  never 
has  existed  in  this  country,  and  which  has  not  the  slightest  chance  of 
appearing  here.  We  are  glad  to  help  in  any  movement  for  international 
peace,  but  this  is  because  we  sincerely  believe  that  it  is  our  duty  to  help 
all  suc.h  movements  provided  they  are  sane  and  rational,  and  not  because 
there  is  any  tendency  toward  militarism  on  our  part  which  needs  to  be 
cured.  The  evils  we  have  to  fight  are  those  in  connection  with  indus- 
trialism, not  militarism.  Industry  is  always  necessary,  just  as  war  is 
sometimes  necessary.  Each  has  its  price,  and  industry  in  the  United 
States  now  exacts,  and  has  always  exacted,  a  far  heavier  toll  of  death 
than  all  our  wars  put  together.  The  statistics  of  the  railroads  of  this 
country  for  the  year  ended  June  30,  1906,  the  last  contained  in  the 
annual  statistical  report  of  the  Interstate  Commerce  Commission,  show 
in  that  one  year  a  total  of  108,324  casualties  to  persons,  of  which  10,618 
represent  the  number  of  persons  killed.  In  that  wonderful  hive  of  human 
activity,  Pittsburg,  the  deaths  due  to  industrial  accidents  in  1906  were 
919,  all  the  result  of  accidents  in  mills,  mines,  or  on  railroads.  For 
the  entire  country,  therefore,  it  is  safe  to  say  that  the  deaths  due  to  in- 
dustrial accidents  aggregate  in  the  neighborhood  of  twenty  thousand 
a  year.  Such  a  record  makes  the  death  rate  in  all  our  foreign  wars  utterly 
trivial  by  comparison.  The  number  of  deaths  in  battle  in  all  the  foreign 
wars  put  together,  for  the  last  century  and  a  quarter,  aggregate  con- 
siderably less  than  one  year's  death  record  for  our  industries.  A  mere 
glance  at  these  figures  is  sufficient  to  show  the  absurdity  of  the  outcry 
against  militarism. 

But  again  and  again  in  the  past  our  little  Regular  Army  has  rendered 
service  literally  vital  to  the  country,  and  it  may  at  any  time  have  to  do 
so  in  the  future.  Its  standard  of  efficiency  and  instruction  is  higher  now 
than  ever  in  the  past.  But  it  is  too  small.  There  are  not  enough  officers ; 
and  it  is  impossible  to  secure  enough  enlisted  men.  We  should  maintain 
in  peace  a  fairly  complete  skeleton  of  a  large  army.  A  great  and  long- 
continued  war  would  have  to  be  fought  by  volunteers.  But  months 
would  pass  before  any  large  body  of  efficient  volunteers  could  be  put  in 
the  field,  and  our  Regular  Army  should  be  large  enough  to  meet  any 
immediate  need.  In  particular  it  is  essential  that  we  should  possess  a 
number  of  extra  officers  trained  in  peace  to  perform  efficiently  the  duties 
urgently  required  upon  the  breaking  out  of  war. 

The  Medical  Corps  should  be  much  larger  than  the  needs  of  our 


612  AMERICAN   FEDERAL   GOVERNMENT 

Regular  Army  in  war.  ,Yet  at  present  it  is  smaller  than  the  needs  of 
the  service  demand  even  in  peace.  The  Spanish  war  occurred  less  than 
ten  years  ago.  The  chief  loss  we  suffered  in  it  was  by  disease  among  the 
regiments  which  never  left  the  country.  At  the  moment  the  Nation 
seemed  deeply  impressed  by  this  fact ;  yet  seemingly  it  has  already  for- 
gotten, for  not  the  slightest  effort  has  been  made  to  prepare  a  medical 
corps  of  a  sufficient  size  to  prevent  the  repetition  of  the  same  disaster 
on  a  much  larger  scale  if  we  should  ever  be  engaged  in  a  serious  conflict. 
The  trouble  in  the  Spanish  war  was  not  with  the  then  existing  officials 
of  the  War  Department;  it  was  with  the  representatives  of  the  people 
as  a  whole,  who  for  the  preceding  thirty  years,  had  declined  to  make  the 
necessary  provision  for  the  Army.  Unless  ample  provision  is  now  made 
by  Congress  to  put  the  Medical  Corps  where  it  should  be  put  disaster  in 
the  next  war  is  inevitable,  and  the  responsibility  will  not  lie  with  those 
then  in  charge  of  the  War  Department,  but  with  those  who  now  decline 
to  make  the  necessary  provision.  A  well  organized  medical  corps, 
thoroughly  trained  before  the  advent  of  war  in  all  the  important  admin- 
istrative duties  of  a  military  sanitary  corps,  is  essential  to  the  efficiency 
of  any  large  army,  and  especially  of  a  large  volunteer  army.  Such  knowl- 
edge of  medicine  and  surgery  as  is  possessed  by  the  medical  profession 
generally  will  not  alone  suffice  to  make  an  efficient  military  surgeon. 
He  must  have,  in  addition,  knowledge  of  the  administration  and  sanita- 
tion of  large  field  hospitals  and  camps,  in  order  to  safeguard  the  health 
and  lives  of  men  intrusted  in  great  numbers  to  his  care.  A  bill  has  long 
been  pending  before  Congress  for  the  reorganization  of  the  Medical 
Corps;  its  passage  is  urgently  needed. 

But  the  Medical  Department  is  not  the  only  department  for  which 
increased  provision  should  be  made.  The  rate  of  pay  for  the  officers 
should  be  greatly  increased ;  there  is  no  higher  type  of  citizen  than  the 
American  regular  officer,  and  he  should  have  a  fair  reward  for  his  ad- 
mirable work.  There  should  be  a  relatively  even  greater  increase  in  the 
pay  for  the  enlisted  men.  In  especial  provision  should  be  made  for 
establishing  grades  equivalent  to  those  of  warrant  officers  in  the  Navy 
which  should  be  open  to  the  enlisted  men  who  serve  sufficiently  long 
and  who  do  their  work  well.  Inducements  should  be  offered  sufficient 
to  encourage  really  good  men  to  make  the  Army  a  life  occupation. 
The  prime  needs  of  our  present  Army  is  to  secure  and  retain  competent 
noncommissioned  officers.  This  difficulty  rests  fundamentally  on  the 
question  of  pay.  The  noncommissioned  officer  does  not  correspond  with 
an  unskilled  laborer;  he  corresponds  to  the  best  type  of  skilled  workman 
or  to  the  subordinate  official  in  civil  institutions.  Wages  have  greatly 
increased  in  outside  occupations  in  the  last  forty  years,  and  the  pay  of  the 
soldier,  like  the  pay  of  the  officers,  should  be  proportionately  increased. 
The  first  sergeant  of  a  company,  if  a  good  man,  must  be  one  of  such 
executive  and  administrative  ability,  and  such  knowledge  of  his  trade, 


ARMY    AND   NAVY  613 

as  to  be  worth  far  more  than  we  at  present  pay  him.  The  same  is  true 
of  the  regimental  sergeant  major.  These  men  should  be  men  who  had 
fully  resolved  to  make  the  Army  a  life  occupation  and  they  should  be 
able  to  look  forward  to  ample  reward;  while  only  men  properly  quali- 
fied should  be  given  a  chance  to  secure  these  final  rewards.  The  in- 
crease over  the  present  pay  need  not  be  great  in  the  lower  grades  for  the 
first  one  or  two  enlistments,  but  the  increase  should  be  marked  for  the 
noncommissioned  officers  of  the  upper  grades  who  serve  long  enough  to 
make  it  evident  that  they  intend  to  stay  permanently  in  the  Army,  while 
additional  pay  should  be  given  for  high  qualifications  in  target  practice. 
The  position  of  warrant  officer  should  be  established  and  there  should 
be  not  only  an  increase  of  pay,  but  an  increase  of  privileges  and  allow- 
ances and  dignity,  so  as  to  make  the  grade  open  to  noncommissioned 
officers  capable  of  filling  them  desirably  from  every  standpoint.  The 
rate  of  desertion  in  our  Army  now  in  time  of  peace  is  alarming.  The 
deserter  should  be  treated  by  public  opinion  as  a  man  guilty  of  the 
greatest  crime ;  while  on  the  other  hand  the  man  who  serves  steadily  in 
the  Army  should  be  treated  as  what  he  is,  that  is,  as  preeminently  one 
of  the  best  citizens  of  this  Republic.  After  twelve  years'  service  in  the 
Army  my  own  belief  is  that  the  man  should  be  given  a  preference  ac- 
cording to  his  ability  for  certain  types  of  office  over  all  civilian  applicants 
without  examination.  This  should  also  apply,  of  course,  to  the  men  who 
have  served  twelve  years  in  the  Navy.  A  special  corps  should  be  pro- 
vided to  do  the  manual  labor  now  necessarily  demanded  of  the  privates 
themselves. 

Among  the  officers  there  should  be  severe  examinations  to  weed  out 
the  unfit  up  to  the  grade  of  major.  From  that  position  on  appointments 
should  be  solely  by  selection  and  it  should  be  understood  that  a  man  of 
merely  average  capacity  could  never  get  beyond  the  position  of  major, 
while  every  man  who  serves  in  any  grade  a  certain  length  of  time  prior 
to  promotion  to  the  next  grade  without  getting  the  promotion  to  the  next 
grade  should  be  forthwith  retired.  The  practice  marches  and  field 
maneuvers  of  the  last  two  or  three  years  have  been  invaluable  to  the 
Army.  They  should  be  continued  and  extended.  A  rigid  and  not  a 
perfunctory  examination  of  physical  capacity  has  been  provided  for  the 
higher  grade  officers.  This  will  work  well.  Unless  an  officer  has  a 
good  physique,  unless  he  can  stand  hardship,  ride  well,  and  walk  fairly, 
he  is  not  fit  for  any  position,  even  after  he  has  become  a  colonel.  Before 
he  has  become  a  colonel  the  need  for  physical  fitness  in  the  officer  is 
almost  as  great  as  in  the  enlisted  man.  I  hope  speedily  to  see  introduced 
into  the  Army  a  far  more  rigid  and  thoroughgoing  test  of  horsemanship 
for  all  field  officers  than  at  present.  There  should  be  a  Chief  of  Cavalry 
just  as  there  is  a  Chief  of  Artillery. 

Perhaps  the  most  important  of  all  legislation  needed  for  the  benefit  of 
the  Army  is  a  law  to  equalize  and  increase  the  pay  of  officers  and  en- 


614  AMERICAN  FEDERAL   GOVERNMENT 

listed  men  of  the  Army,  Navy,  Marine  Corps,  and  Revenue-Cutter 
Service.  Such  a  bill  has  been  prepared,  which  it  is  hoped  will  meet 
with  your  favorable  consideration.  The  next  most  essential  measure 
is  to  authorize  a  number  of  extra  officers  as  mentioned  above.  To  make 
the  Army  more  attractive  to  enlisted  men,  it  is  absolutely  essential  to 
create  a  service  corps,  such  as  exists  in  nearly  every  modern  army  in  the 
world,  to  do  the  skilled  and  unskilled  labor,  inseparably  connected  with 
military  administration,  which  is  now  exacted,  without  just  compensa- 
tion, of  enlisted  men  who  voluntarily  entered  the  Army  to  do  service  of 
an  altogether  different  kind.  There  are  a  number  of  other  laws  neces- 
sary to  so  organize  the  Army  as  to  promote  its  efficiency  and  facilitate 
its  rapid  expansion  in  time  of  war;  but  the  above  are  the  most 
important. 

The  Navy.  It  was  hoped  The  Hague  Conference  might  deal  with 
the  question  of  the  limitation  of  armaments.  But  even  before  it  had  as- 
sembled informal  inquiries  had  developed  that  as  regards  naval  arma- 
ments the  only  ones  in  which  this  country  had  any  interest,  it  was  hopeless 
to  try  to  devise  any  plan  for  which  there  was  the  slightest  possibility  of 
securing  the  assent  of  the  nations  gathered  at  The  Hague.  No  plan  was 
even  proposed  which  would  have  had  the  assent  of  more  than  one  first 
class  Power  outside  of  the  United  States.  The  only  plan  that  seemed  at 
all  feasible,  that  of  limiting  the  size  of  battleships,  met  with  no  favor  at 
all.  It  is  evident,  therefore,  that  it  is  folly  for  this  Nation  to  base  any 
hope  of  securing  peace  on  any  international  agreement  as  to  the  limita- 
tion of  armaments.  Such  being  the  fact  it  would  be  most  unwise  for  us 
to  stop  the  upbuilding  of  our  Navy.  To  build  one  battleship  of  the  best 
and  most  advanced  type  a  year  would  barely  keep  our  fleet  up  to  its  pres- 
ent force.  This  is  not  enough.  In  my  judgment,  we  should  this  year 
provide  for  four  battleships.  But  it  is  idle  to  build  battleships  unless  in 
addition  to  providing  the  men,  and  the  means  for  thorough  training,  we 
provide  the  auxiliaries  for  them,  unless  we  provide  docks,  the  coaling 
stations,  the  colliers  and  supply  ships  that  they  need.  We  are  extremely 
deficient  in  coaling  stations  and  docks  on  the  Pacific,  and  this  deficiency 
should  not  longer  be  permitted  to  exist.  Plenty  of  torpedo  boats  and 
destroyers  should  be  built.  Both  on  the  Atlantic  and  Pacific  coasts, 
fortifications  of  the  best  type  should  be  provided  for  all  our  greatest 
harbors. 

We  need  always  to  remember  that  in  time  of  war  the  Navy  is  not  to 
be  used  to  defend  harbors  and  sea-coast  cities;  we  should  perfect  our 
system  of  coast  fortifications.  The  only  efficient  use  for  the  Navy  is 
for  offense.  The  only  way  in  which  it  can  efficiently  protect  our  own 
coast  against  the  possible  action  of  a  foreign  navy  is  by  destroying  that 
foreign  navy.  For  defense  against  a  hostile  fleet  which  actually  attacks 
them,  the  coast  cities  must  depend  upon  their  forts,  mines,  torpedoes, 
submarines,  and  torpedo  boats  and  destroyers.  All  of  these  together  are 


ARMY  AND   NAVY  615 

efficient  for  defensive  purposes,  but  they  in  no  way  supply  the  place  of  a 
thoroughly  efficient  navy  capable  of  acting  on  the  offensive ;  for  parry- 
ing never  yet  won  a  fight.  It  can  only  be  won  by  hard  hitting,  and  an 
aggressive  sea-going  navy  alone  can  do  this  hard  hitting  of  the  offensive 
type.  But  the  forts  and  the  like  are  necessary  so  that  the  Navy  may  be 
footloose.  In  time  of  war  there  is  sure  to  be  demand,  under  pressure  of 
fright,  for  the  ships  to  be  scattered  so  as  to  defend  all  kind  of  ports. 
Under  penalty  of  terrible  disaster,  this  demand  must  be  refused.  The 
ships  must  be  kept  together,  and  their  objective  made  the  enemies' 
fleet.  If  the  fortifications  are  sufficiently  strong,  no  modern  navy  will 
venture  to  attack  them,  so  long  as  the  foe  has  in  existence  a  hostile  navy 
of  anything  like  the  same  size  or  efficiency.  But  unless  there  exists  such 
a  navy  then  the  fortifications  are  powerless  by  themselves  to  secure  the 
victory.  For  of  course  the  mere  deficiency  means  that  any  resolute 
enemy  can  at  his  leisure  combine  all  his  forces  upon  one  point  with  the 
certainty  that  he  can  take  it. 

Until  our  battle  fleet  is  much  larger  than  at  present  it  should  never  be 
split  into  detachments  so  far  apart  that  they  could  not  in  event  of  emer- 
gency be  speedily  united.  Our  coast  line  is  on  the  Pacific  just  as  much 
as  on  the  Atlantic.  The  interests  of  California,  Oregon,  and  Washington 
are  as  emphatically  the  interests  of  the  whole  Union  as  those  of  Maine 
and  New  York,  of  Louisiana  and  Texas.  The  battle  fleet  should  now 
and  then  be  moved  to  the  Pacific,  just  as  at  other  times  it  should  be  kept 
in  the  Atlantic.  When  the  Isthmian  Canal  is  built  the  transit  of  the 
battle  fleet  from  one  ocean  to  the  other  will  be  comparatively  easy. 
Until  it  is  built  I  earnestly  hope  that  the  battle  fleet  will  be  thus  shifted 
between  the  two  oceans  every  year  or  two.  The  marksmanship  on  all 
our  ships  has  improved  phenomenally  during  the  last  five  years.  Until 
within  the  last  two  or  three  years  it  was  not  possible  to  train  a  battle 
fleet  in  squadron  maneuvers  under  service  conditions,  and  it  is  only 
during  these  last  two  or  three  years  that  the  training  under  these  condi- 
tions has  become  really  effective.  Another  and  most  necessary  stride  in 
advance  is  now  being  taken.  The  battle  fleet  is  about  starting  by  the 
Straits  of  Magellan  to  visit  the  Pacific  coast.  Sixteen  battleships  are 
going  under  the  command  of  Rear-Admiral  Evans,  while  eight  armored 
cruisers  and  two  other  battleships  will  meet  him  at  San  Francisco, 
whither  certain  torpedo  destroyers  are  also  going.  No  fleet  of  such 
size  has  ever  made  such  a  voyage,  and  it  will  be  of  very  great  educational 
use  to  all  engaged  in  it.  The  only  way  by  which  to  teach  officers  and 
men  how  to  handle  the  fleet  so  as  to  meet  every  possible  strain  and 
emergency  in  time  of  war  is  to  have  them  practice  under  similar  condi- 
tions in  time  of  peace.  Moreover,  the  only  way  to  find  out  our  actual 
needs  is  to  perform  in  time  of  peace  whatever  maneuvers  might  be  neces- 
sary in  time  of  war.  After  war  is  declared  it  is  too  late  to  find  out  the 
needs ;  that  means  to  invite  disaster.  This  trip  to  the  Pacific  will  show 


616  AMERICAN   FEDERAL   GOVERNMENT 

what  some  of  our  needs  are  and  will  enable  us  to  provide  for  them.  The 
proper  place  for  an  officer  to  learn  his  duty  is  at  sea,  and  the  only  way  in 
which  a  navy  can  ever  be  made  efficient  is  by  practice  at  sea,  under  all 
the  conditions  which  would  have  to  be  met  with  if  war  existed. 

I  bespeak  the  most  liberal  treatment  for  the  officers  and  enlisted  men 
of  the  Navy.  It  is  true  of  them,  as  likewise  of  the  officers  and  enlisted 
men  of  the  Army,  that  they  form  a  body  whose  interests  should  be  close 
to  the  heart  of  every  good  American.  In  return  the  most  rigid  perform- 
ance of  duty  should  be  exacted  from  them.  The  reward  should  be 
ample  when  they  do  their  best ;  and  nothing  less  than  their  best  should 
be  tolerated.  It  is  idle  to  hope  for  the  best  results  when  the  men  in  the 
senior  grades  come  to  those  grades  late  in  life  and  serve  too  short  a  time 
in  them.  Up  to  the  rank  of  lieutenant-commander  promotion  in  the 
Navy  should  be  as  now,  by  seniority,  subject,  however,  to  such  rigid 
tests  as  would  eliminate  the  unfit.  After  the  grade  of  lieutenant-com- 
mander, that  is,  when  we  come  to  the  grade  of  command  rank,  the 
unfit  should  be  eliminated  in  such  a  manner  that  only  the  conspicuously 
fit  would  remain,  and  sea  service  should  be  a  principal  test  of  fitness. 
Those  who  are  passed  by  should,  after  a  certain  length  of  service  in  their 
respective  grades,  be  retired.  Of  a  given  number  of  men  it  may  well  be 
that  almost  all  would  make  good  lieutenants  and  most  of  them  good 
lieutenant-commanders,  while  only  a  minority  will  be  fit  to  be  captains, 
and  but  three  or  four  to  be  admirals.  Those  who  object  to  promotion 
otherwise  than  by  mere  seniority  should  reflect  upon  the  elementary  fact 
that  no  business  in  private  life  could  be  successfully  managed  if  those 
who  enter  at  the  lowest  rungs  of  the  ladder  should  each  in  turn,  if  he 
lived,  become  the  head  of  the  firm,  its  active  director,  and  retire  after 
he  had  beld  the  position  a  few  months.  On  its  face  such  a  scheme  is  an 
absurdity.  Chances  for  improper  favoritism  can  be  minimized  by  a 
properly  formed  board ;  such  as  the  board  of  last  June,  which  did  such 
conscientious  and  excellent  work  in  elimination. 

If  all  that  ought  to  be  done  can  not  now  be  done,  at  least  let  a  begin- 
ning be  made.  In  my  last  three  annual  Messages,  and  in  a  special 
Message  to  the  last  Congress,  the  necessity  for  legislation  that  will 
cause  officers  of  the  line  of  the  Navy  to  reach  the  grades  of  captain  and 
rear-admiral  at  less  advanced  ages  and  which  will  cause  them  to  have 
more  sea  training  and  experience  in  the  highly  responsible  duties  of 
those  grades,  so  that  they  may  become  thoroughly  skillful  in  handling 
battleships,  divisions,  squadrons,  and  fleets  in  action,  has  been  fully 
explained  and  urgently  recommended.  Upon  this  subject  the  Secretary 
of  the  Navy  has  submitted  detailed  and  definite  recommendations 
which  have  received  my  approval,  and  which,  if  enacted  into  law,  will 
accomplish  what  is  immediately  necessary,  and  will,  as  compared  with 
existing  law,  make  a  saving  of  more  than  five  millions  of  dollars  during 
the  next  seven  years.  The  navy  personnel  act  of  1899  has  accomplished 


ARMY  AND   NAVY  617 

all  that  was  expected  of  it  in  providing  satisfactory  periods  of  service  in 
the  several  subordinate  grades,  from  the  grade  of  ensign  to  the  grade 
of  lieutenant-commander,  but  the  law  is  inadequate  in  the  upper  grades 
and  will  continue  to  be  inadequate  on  account  of  the  expansion  of  the 
personnel  since  its  enactment.  Your  attention  is  invited  to  the  follow- 
ing quotations  from  the  report  of  the  personnel  board  of  1906,  of  which 
the  Assistant  Secretary  of  tne  Navy  was  president: 

"Congress  has  authorized  a  considerable  increase  in  the  number  of  mid- 
shipmen at  the  Naval  Academy,  and  these  midshipmen  upon  graduation  are 
promoted  to  ensign  and  lieutenant  (junior-grade).  But  no  provision  has  been 
made  for  a  corresponding  increase  in  the  upper  grades,  the  result  being  that 
the  lower  grades  will  become  so  congested  that  a  midshipman  now  in  one  of  the 
lowest  classes  at  Annapolis  may  possibly  not  be  promoted  to  lieutenant  until 
he  is  between  45  and  50  years  of  age.  So  it  will  continue  under  the  present 
law,  congesting  at  the  top  and  congesting  at  the  bottom.  The  country  fails  to 
get  from  the  officers  of  the  service  the  best  that  is  in  them  by  not  providing 
opportunity  for  their  normal  development  and  training.  The  board  believes 
that  this  works  a  serious  detriment  to  the  efficiency  of  the  Navy  and  is  a  real 
menace  to  the  public  safety." 

As  I  stated  in  my  special  Message  to  the  last  Congress:  "I  am  firmly 
of  the  opinion  that  unless  the  present  conditions  of  the  higher  com- 
missioned personnel  is  rectified  by  judicious  legislation  the  future  of 
our  Navy  will  be  gravely  compromised."  It  is  also  urgently  necessary 
to  increase  the  efficiency  of  the  Medical  Corps  of  the  Navy.  Special 
legislation  to  this  end  has  already  been  proposed ;  and  I  trust  it  may  be 
enacted  without  delay. 

It  must  be  remembered  that  everything  done  in  the  Navy  to  fit  it 
to  do  well  in  time  of  war  must  be  done  in  time  of  peace.  Modern  wars 
are  short ;  they  do  not  last  the  length  of  time  requisite  to  build  a  battle- 
ship; and  it  takes  longer  to  train  the  officers  and  men  to  do  well  on  a 
battleship  than  it  takes  to  build  it.  Nothing  effective  can  be  done  for 
the  Navy  once  war  has  begun,  and  the  result  of  the  war,  if  the  combat- 
ants are  otherwise  equally  matched,  will  depend  upon  which  power  has 
prepared  best  in  time  of  peace.  The  United  States  Navy  is  the  best 
guaranty  the  Nation  has  that  its  honor  and  interest  will  not  be  neglected ; 
and  in  addition  it  offers  by  far  the  best  insurance  for  peace  that  can  by 
human  ingenuity  be  devised. 

I  call  attention  to  the  report  of  the  official  Board  of  Visitors  to  the 
Naval  Academy  at  Annapolis  which  has  been  forwarded  to  the  Congress. 
The  report  contains  this  paragraph : 

"Such  revision  should  be  made  of  the  courses  of  study  and  methods  of  con- 
ducting and  marking  examinations  as  will  develop  and  bring  out  the  average 
all-round  ability  of  the  midshipman  rather  than  to  give  him  prominence  in 
any  one  particular  study.  The  fact  should  be  kept  in  mind  that  the  Naval 


6i8  AMERICAN   FEDERAL   GOVERNMENT 

Academy  is  not  a  university  but  a  school,  the  primary  object  of  which  is  to 
educate  boys  to  be  efficient  naval  officers.  Changes  in  curriculum,  therefore, 
should  be  in  the  direction  of  making  the  course  of  instruction  less  theoretical 
and  more  practical.  No  portion  of  any  future  class  should  be  graduated  in 
advance  of  the  full  four  years'  course,  and  under  no  circumstances  should  the 
standard  of  instruction  be  lowered.  The  Academy  in  almost  all  of  its  depart- 
ments is  now  magnificently  equipped,  and  it  would  be  very  unwise  to  make 
the  course  of  instruction  less  exacting  than  it  is  to-day." 


THE  WAR  DEPARTMENT— MILITARY  ADMINISTRATION  1 
BY  BRIGADIER-GENERAL  WILLIAM  H.   CARTER,  U.  S.  A.1 

WHEN  the  great  Civil  War  Secretary,  Edwin  M.  Stanton,  took  up  the 
work  of  the  Department,  which  for  four  years  laid  such  a  mental  and 
physical  strain  upon  him  as  few  men  could  bear,  he  found  a  condition 
calculated  to  bring  discouragement  to  the  stoutest  heart.  The  relations 
between  the  Secretary  of  War  and  the  Commanding  General  of  the  Army 
had  long  been  of  such  a  character  that  the  latter  officer  had  removed 
his  headquarters  to  New  York  City.  He  was  now  brought  back  to  the 
seat  of  government  with  the  expectation  that  his  staunch  loyalty,  knowl- 
edge of  the  army  and  professional  ability  would  render  him  useful  in  the 
hour  of  peril.  Advancing  years,  however,  soon  compelled  his  retirement 
from  active  service. 

Immediate  measures  were  taken  to  insure  the  safety  of  the  Capital 
and  to  bring  into  service  armies  sufficient  in  size  and  number  to  cope 
with  the  grave  question  of  preserving  the  Union.  It  became  necessary 
to  reorganize  the  business  methods  of  the  various  bureaus  to  meet  the 
exceptional  tasks  confronting  them  in  the  organization,  equipping  and 
supplying  of  an  army  suddenly  increased  from  about  ten  thousand  to 
ultimately  more  than  one  million  men  in  actual  service. 

The  general  system  of  administration  was  similar  to  that  pursued 
during  the  Mexican  War,  and  much  reliance  was  placed  on  the  veterans 
of  that  conflict.  It  did  not  take  long  to  make  it  evident,  to  thoughtful 
and  alert  friends  of  the  Union,  that  the  magnitude  of  the  conflict  then 
raging  was  little  understood  by  the  general  public,  and  that  preparation, 
in  the  shape  of  money,  material,  and  men,  for  a  prolonged  and  bloody 
war  was  the  immediate  duty  of  the  War  Department.  The  history  of 
the  great  struggle  is  still  fresh  in  the  minds  of  the  American  people,  but 
it  may  be  safely  stated  that  only  a  very  limited  number  have  a  proper 
appreciation  of  the  great  administrative  work  performed  by  the  War 
Department  during  the  days  and  nights  of  the  whole  four  years  of  war. 
There  were  periods  of  marching,  of  battle,  and  of  monotonous  camp  life 

1  Part  of  an  article  in  Scribner's  Magazine,  June,  1903.  Reprinted  by  permission. 
Copyright. 


ARMY  AND   NAVY  619 

for  the  average  regiment;  but  for  the  Secretary  of  War  and  his  coad- 
jutors there  was  one  unending  round  of  high  tension  work. 

Armies  are  useless  without  food,  clothes,  ammunition  and  transporta- 
tion, and  to  obtain  and  distribute  these  essential  requisites  in  the  quan- 
tities demanded  during  the  Civil  War  required  administrative  and 
executive  ability  of  a  high  order.  The  absence  of  a  directing  and  co- 
ordinating professional  authority  in  the  scheme  of  army  organization 
threw  an  immense  strain  upon  the  Secretary  of  War  and  President.  No 
student  of  the  art  of  war  can  read  the  war  orders  and  instructions  of 
President  Lincoln  without  noting  the  rapid  and  wonderful  growth  of 
his  mind  during  the  early  years  of  the  war,  especially  as  to  the  military 
policy  and  grand  strategy.  It  was  his  knowledge  of  the  value  of  co- 
ordinated and  united  action  that  led  him  to  a  constant  effort  to  have  all 
the  various  armies  operate  under  a  general  policy,  and  prevent  the 
Confederates  from  continually  availing  themselves  of  interior  lines  of 
communication  to  reenforce  threatened  points.  It  took  a  long  time  and 
untold  millions  to  bring  all  the.  separate  armies  to  a  condition  of  readi- 
ness, but  when  this  agressive,  hammer-and-tongs  policy  was  instituted 
all  along  the  line  the  Department  was  able  to  see  the  end  of  the  enor- 
mous burden  the  country  was  patiently  bearing,  in  the  drain  upon  its 
resources. 

Nothing  in  all  military  history  equals  the  business  administration  of 
the  War  Department  as  exemplified  in  the  muster-out  and  transporta- 
tion of  the  great  volunteer  armies  to  their  homes  at  the  close  of  the  Civil 
War.  The  great  burden  of  current  expense  was  quickly  reduced,  a 
matter  of  vital  importance  at  the  time. 

After  so  much  experience  in  handling  large  numbers  of  men  during 
four  years  of  war,  the  preparation  of  General  Sheridan's  army,  for  a 
descent  upon  the  French  troops  in  Mexico,  was  attended  with  no  special 
difficulties.  Fortunately  wise  counsels  prevailed  in  the  French  nation, 
and  this,  together  with  some  rather  active  pressure  on  the  part  of  the 
Mexican  people,  caused  the  withdrawal  of  Bazaine's  army  from  our 
neighboring  republic,  and  enabled  the  War  Department  to  dispense 
with  the  volunteers  assembled  in  Texas. 

Following  close  upon  the  muster-out  of  the  volunteers  a  reorganiza- 
tion of  the  regular  army,  involving  an  increase  of  the  various  staff  de- 
partments and  a  considerable  augmentation  of  the  line,  took  place.  A 
portion  of  the  new  army  was  destined  for  service  in  the  Southern  States 
during  the  reconstruction  period.  The  duties  required  of  the  army 
during  the  long  and  disastrous  efforts  at  sustaining  "carpet-bag"  gov- 
ernments were  intensely  distasteful  to  both  officers  and  men,  as  well 
as  to  the  better  element  amongst  the  Southern  people.  To  be  sure  the 
Civil  War  had  just  closed,  and  it  was  necessary  to  reestablish  law  and 
order  throughout  a  vast  territory  inhabited  by  a  negro  population,  which 
regarded  the  army  as  the  embodiment  of  that  power  which  had  struck 


620  AMERICAN   FEDERAL   GOVERNMENT 

off  the  shackles  of  slavery.  The  use  of  the  army  at  the  polls  and  in  civil 
matters  generally  has  ever  been  repugnant  to  American  ideas,  and  at 
this  period  it  only  succeeded  in  embittering  the  Southern  people  to  such 
an  extent  that  one  of  their  first  and  most  insistent  policies,  after  the 
reconstruction,  was  to  demand  a  reduction  of  the  regular  army.  Under 
this  pressure  the  strength  of  the  army  was  fixed  and  remained  at  25,000 
men  until  the  outbreak  of  the  war  with  Spain. 

During  the  quarter  of  a  century  following  the  close  of  the  Civil  War 
the  army  was  constantly  overworked  in  the  Far  West,  where  advancing 
civilization  was  resisted  by  the  warriors  of  nearly  all  the  Indian  tribes 
in  their  fruitless  effort  to  stem  the  tide,  which  was  steadily  circumscrib- 
ing and  overflowing  their  hunting  grounds.  The  wasteful  slaughter  of 
millions  of  buffaloes  within  the  brief  period  of  half  a  dozen  years  com- 
pletely changed  the  history  of  the  nomadic  Plains  Indians.  The  many 
stories  of  wagon  trains,  and  even  railroad  trains,  being  stopped  to  wait 
the  passing  of  countless  thousands  in  some  of  the  great  migrating  buffalo 
herds  now  read  like  visionary  tales  of  disordered  minds. 

The  War  Department  had  continued  in  charge  of  the  Indians  until 
the  close  of  the  Mexican  War,  after  which  period  their  affairs  were  mail- 
aged  by  Indian  agents,  with  minimum  salaries  and  maximum  tempta- 
tions. Many  times  the  army  was  compelled  to  stand  idly  by  and  witness 
the  perpetration  of  wrongs,  and  when  the  Indians,  in  desperation, 
"broke  out,"  the  War  Department  was  called  upon  to  produce  another 
era  of  peace.  Year  after  year  regiments  were  summoned  to  the  field, 
sometimes  under  tropical  suns,  and  again  in  the  land  of  blizzards,  where 
the  icy  winds  made  campaigning  miserable  alike  to  pursuer  and  pur- 
sued. With  each  recurring  surrender  the  Indians  were  restored  to  the 
tender  mercies  of  the  agent  and  his  harpies,  only  to  find  their  grievances 
multiplied. 

As  years  wore  on  the  settlers,  with  their  wire  fences,  closed  in  slowly 
but  surely  around  the  reservations,  and  the  fact  dawned  upon  the  Indians 
that  the  wild,  free  life  of  the  Golden  West  had  gone.  The  march  of 
civilization  had  swept  away  the  old  life  and  left  but  mere  remnants  of 
once  proud  tribes  stranded  as  drift-wood  along  the  shores  of  progress. 
Encountering  only  the  worst  elements  amongst  the  whites,  too  often 
the  mere  outcasts  of  society,  the  poor  warriors,  shorn  of  the  power 
wielded  by  their  ancestors,  turned  restlessly  for  some  light  to  those  with 
whom  they  had  battled  and  at  whose  hands  they  had  often  suffered 
defeat.  Army  officers  were  again  installed  as  Indian  agents  and  gradu- 
ally laid  the  foundations  of  lasting  peace  by  showing  the  Indians  the 
utter  futility  of  contending  against  inevitable  fate. 

The  Indian  question  having  been  practically  settled  for  all  time,  a 
plan  was  adopted  by  the  War  Department  of  bringing  together  the 
scattered  fragments  of  the  regular  army,  which  in  its  entirety  did  not 
equal  in  numbers  a  single  army  corps.  The  necessity  for  guarding  iso- 


ARMY  AND   NAVY  621 

lated  and  exposed  points  had  for  years  presented  proper  instruction  of 
officers  and  men  in  the  administration  and  maneuvers  of  battalions, 
regiments,  and  brigades,  but  in  minor  warfare  they  were  not  outclassed 
by  any  soldiers  the  world  over.  To  accomplish  the  best  results  numerous 
small  posts  were  abandoned  and  regimental  posts  established.  Coin- 
cident with  the  inception  of  this  plan,  work  of  construction  proceeded 
along  the  seacoast  under  the  general  scheme  adopted  under  authority 
of  Congress.  During  actual  Indian  hostilities  the  urgent  need  for  men 
in  the  cavalry  and  infantry  had  caused  a  reduction  in  the  strength  of 
artillery  organizations,  which  rendered  them  incapable  of  fulfilling  their 
proper  functions  in  seacoast  defense.  To  meet  this  emergency  in  a 
mediocre  way,  two  troops  of  each  cavalry  regiment  and  two  companies 
of  each  infantry  regiment  were  "skeletonized."  This  scheme  left  the 
cavalry  regiments  with  two  squadrons  and  a  half,  but  gave  the  infantry 
regiments  two  complete  battalions,  that  branch  having  at  the  time  only 
ten  companies  to  each  regiment.  One  of  the  results  of  recent  experi- 
ence has  been  to  fix  by  statute  a  minimum  limit  for  each  troop  of  cavalry 
and  company  of  infantry,  so  that  in  future  it  will  not  be  legal  to  skele- 
tonize any  portion  of  the  army. 

The  unwillingness  of  Congress  to  recognize  the  urgent  need  of  men  to 
garrison  the  growing  coast  defenses,  while  continuing  to  spend  millions 
upon  fortifications  and  guns,  caused  the  Department  grave  concern. 
After  years  of  pleading  for  proper  legislation,  a  piteous  appeal  was  finally 
made  for  two  additional  regiments  of  artillery,  and  action  was  slowly 
maturing  in  this  regard  when  other  events  occurred  which  rapidly  roused 
the  country  to  action. 

For  more  than  half  a  century  Cuba  had  been  a  source  of  incessant 
anxiety  and  trouble  to  every  administration.  •  Forty  years  back  —  De- 
cember, 1858  —  President  James  Buchanan,  in  complaining  in  a  message 
to  Congress  of  past  conditions,  said:  " Spanish  officials  under  the  direct 
control  of  the  Captain  General  of  Cuba  have  insulted  our  national  flag, 
and  in  repeated  instances  have  from  time  to  time  inflicted  injuries  on  the 
persons  and  property  of  our  citizens.  ...  All  our  attempts  to  obtain 
redress  have  been  baffled  and  defeated.  .  .  .  The  truth  is  that  Cuba, 
in  its  existing  colonial  condition,  is  a  constant  source  of  injury  and  an- 
noyance to  the  American  people.  ...  It  has  been  made  known  to  the 
world  by  my  predecessors  that  the  United  States  have  on  several  occa- 
sions endeavored  to  acquire  Cuba  from  Spain  by  honorable  negotiation. 
.  .  .  We  would  not,  if  we  could,  acquire  Cuba  in  any  other  manner. 
This  is  due  to  our  national  character.  .  .  .  Our  relations  with  Spain, 
which  ought  to  be  of  the  most  friendly  character,  must  always  be  placed 
in  jeopardy  whilst  the  existing  Colonial  government  over  the  island 
shall  remain  in  its  present  condition." 

There  was  a  widespread  sentiment  throughout  the  United  States  in 
behalf  of  the  Cubans  in  their  insurrection  against  Spanish  domination. 


622  AMERICAN   FEDERAL   GOVERNMENT 

Many  well-informed  newspapers  protested  against  the  circulation  of 
unreliable  stories  calculated  to  create  false  sympathy,  but  the  tide  was 
flowing  full,  and  the  minority  in  Congress  constantly  twitted  the  majority 
because  of  the  failure  to  intervene  in  the  Cuban  struggle.  Captain  Gen- 
eral Weyler  was  held  up  to  universal  scorn  because  he  had  turned  back 
the  methods  of  war  to  the  days  of  the  Spanish  Inquisition.  The  estab- 
lishment of  reconcentrado  camps,  done  to  prevent  Spanish  soldiers  from 
being  murdered  in  a  war  in  which  there  were  no  battles  in  the  open, 
brought  down  upon  Spain  the  antagonism  of  all  Cuban  sympathizers. 

The  Secretary  of  War  and  his  co-workers  were  advised  of  the  un- 
prepared state  of  the  army  and  of  the  defenses  for  immediate  war. 
Everything  which  could  be  legitimately  done  at  the  time  was  hastened 
forward  to  make  up  for  past  neglect,  but  guns,  ammunition  and  armies  do 
not  appear  by  magic.  When  the  battleship  Maine  met  destruction  in 
Havana  harbor  on  the  fateful  night  of  February  15,  1898,  the  nation  was 
so  horrified  that  it  required  all  the  wisdom  and  statesmanship  of  Presi- 
dent McKinley  to  delay  the  inevitable  conflict  while  preparations  were 
hurried  forward.  On  March  8th  Congress  unanimously  voted  $50,000,000 
for  the  national  defense,  but  as  the  new  Spanish  Minister,  Sefior  Palo  y 
Bernabe,  entered  upon  his  duties  at  Washington  a  few  days  later,  the 
appropriation  was  not  regarded  as  a  war  measure.  The  brief  period 
intervening  before  the  passage  of  the  resolutions  authorizing  intervention 
in  the  Island  of  Cuba  was  used  to  advance  preparation  for  war,  but  the 
Secretary  of  War  was  greatly  embarrassed  by  the  failure  of  Congress  to 
pass  any  measure  for  raising  an  army  until  after  war  was  actually  de- 
clared. The  nation  was  unprepared,  yet  when  war  was  declared  every 
shoulder  was  put  manfully  to  the  wheel,  and  Europe  saw  with  amaze- 
ment the  capacity  of  the  young  giant  whose  whole  energies  had  long  been 
turned  to  the  upbuilding  of  new  States  and  the  extension  of  an  indus- 
trial development  hitherto  unknown  to  any  like  period  of  the  world's 
history. 

The  country  had  not  engaged  in  war  since  the  close  of  the  gigantic 
struggle  of  1861  to  1865 ;  no  progress  in  legislation  had  been  made  in 
a  hundred  years  so  far  as  utilization  of  organized  militia  was  concerned, 
and  there  was  no  law  extant  under  which  the  President  could  take  any 
of  those  preliminary  steps  so  essential  to  success  in  war.  During  April 
all  of  the  little  regular  army  which  could  be  spared  was  assembled  in 
Southern  camps  and  organized  in  brigades  and  divisions.  This  was  a 
measure  of  extreme  precaution ;  the  results  at  Santiago  prove  it  to  have 
been  one  of  those  fortunate  strokes  upon  which  the  fate  of  nations  often 
hang. 

Within  a  few  hours  after  the  passage  of  the  Act  authorizing  a  volunteer 
army  a  call  for  125,000  men  was  made;  this  was  followed  by  another 
for  75,000,  which,  with  the  increase  of  the  regular  army,  made  a  total 
of  nearly  250,000  men.  The  volunteers  under  the  first  call  were  put  in 


ARMY  AND   NAVY  623 

the  field  in  thirty  days,  and  the  entire  work  of  organization  —  the  mighty 
task  of  putting  a  quarter  of  a  million  men  under  arms  and  equipping 
them  for  service,  in  face  of  all  obstacles  —  was  completed  in  ninety  days. 
There  was  no  lack  of  volunteers ;  on  the  contrary  the  War  Department 
was  embarrassed  with  offers  of  service. 

Notwithstanding  all  this,  well-informed  officials  recognized  that  the 
country  had  not  advanced  in  military  methods  one  iota  in  half  a  century, 
for  every  effort  of  the  War  Department  to  profit  by  the  lessons  of  the 
past  met  with  opposition.  There  was  a  determination  in  many  States 
to  cast  aside  the  one  pronounced  lesson  of  the  Mexican  and  Civil  Wars, 
and  it  was  only  through  President  McKinley's  acceptance  of  the  views 
of  experienced  officers  that  a  complete  breakdown  of  the  system  was 
avoided.  To  be  more  explicit  on  this  important  point;  in  our  military 
system,  organization  and  recruitment  pertain  to  the  adjutant  general's 
bureau  of  the  War  Department;  that  bureau  insisted  that  the  scheme 
which  allowed  volunteer  regiments  to  be  mustered  in  with  all  their  officers, 
but  with  only  half  a  quota  of  men,  to  be  soon  reduced  below  a  basis  of 
efficiency,  should  not  prevail.  The  anxiety  to  get  mustered  into  service 
caused  many  excellent  officers  of  the  National  Guard  to  join  in  a  move- 
ment, which  was  calculated  to  break  down  the  whole  militia  system,  and 
did  cause  it  to  lose  the  respect  of  well-informed  veterans  of  the  Civil 
War.  The  pressure  brought  by  Pennsylvania  was  so  great  that  it  secured 
a  modification  of  the  rule  which  Grant,  Sherman,  and  all  the  great 
leaders  of  the  Civil  War,  had  contended  for  as  of  vital  importance  in 
maintaining  the  efficiency  of  volunteer  armies.  As  soon  as  the  first  call 
was  completed,  President  McKinley  came  to  the  rescue  by  making 
another  call  for  75,000  men,  and  giving  an  order  that  no  new  organiza- 
tion should  be  accepted  from  any  State  until  the  ranks  of  all  existing 
volunteer  organizations  from  that  State  should  be  recruited  to  the  maxi- 
mum. This  is  a  military  principle  indispensable  to  economical  success 
with  volunteer  armies. 

Coincident  with  this  work,  the  selection  and  appointment  of  general 
officers  of  the  line  and  officers  of  the  various  staff  and  supply  departments 
went  on  apace.  In  anticipation  of  war  the  Department  had  for  some 
years  been  preparing  lists  of  graduates  of  the  officers'  service  or  post- 
graduate schools  in  the  regular  army,  with  a  view  to  the  assignment  of 
specially  qualified  officers  to  staff  duty  with  the  brigades,  divisions  and 
corps  of  volunteers.  The  first  promotions  and  assignments  were  made 
from  experienced  regulars;  then  followed  a  rush  of  applicants  urged 
by  congressional  delegations  and  those  with  official  and  social  influence. 
The  test  of  efficiency  and  experience  was  necessarily  abandoned  under 
this  pressure,  and  appointments  followed  the  usual  lines  of  patronage 
and  expediency.  In  these  modern  days,  wars  are  of  too  short  duration 
to  justify  appointment  of  inexperienced  men  to  important  military 
offices ;  it  is  a  matter  within  the  control  of  the  President,  and  if  he  gives 


624  AMERICAN  FEDERAL   GOVERNMENT 

way  to  the  fierce  pressure,  the  army  and  country  must  suffer  during  the 
period  while  the  new  men  are  learning  the  trade  of  arms.  Notwith- 
standing the  many  years  of  threatening  clouds,  there  was  no  well-defined 
plan  for  organizing  the  army  when  called  into  active  service.  Brigades, 
divisions  and  corps  gradually  came  into  being  through  the  expediency 
of  the  moment.  A  heterogeneous  mass  of  staff  officers  was  distributed 
to  the  general  officers,  and  in  many  instances,  instead  of  being  useful, 
they  proved  to  be  encumbrances.  In  numerous  cases  the  generals  in 
command  detailed  subordinate  regular  officers  to  perform  the  duties 
while  the  volunteer  officers  held  the  higher  staff  rank  and  drew  the  pay 
of  offices  requiring  technical  knowledge,  which  is  not  immediately  sup- 
plied through  patriotism  and  willingness  to  serve.  The  humiliating 
experience  of  some  of  the  great  volunteer  camps  should  be  enough  to 
prevent  a  repetition  of  such  mistakes,  but  there  is  no  assurance  that  like 
methods  will  not  obtain  in  the  next  war  unless  some  change  in  our 
military  system  is  brought  about. 

Having  in  view  the  advantage  to  be  derived  by  not  overcrowding  rail- 
way terminals  and  docks,  provision  was  made  for  distributing  the  forces 
destined  for  service  over  sea  at  New  Orleans,  Mobile  and  Tampa. 
Influences  of  various  kinds  prevailed  against  this  scheme  with  the  result 
that  Tampa  will  always  be  to  the  army  and  the  people  a  synonym  of 
blunder  and  reproach.  Taking  advantage  of  the  sharp  criticisms  brought 
upon  the  department  because  of  conditions  at  Tampa,  certain  railroad 
and  hotel  interests  urged  the  pretended  advantages  of  Miami,  and  in 
face  of  adverse  reports  on  the  site  by  military  experts,  an  order  was 
given  to  move  a  division  of  troops  to  that  point,  with  no  good  results. 

The  need  for  ships  was  urgent,  and  the  navy  was  seeking  them  at  the 
same  time  as  the  army.  Our  officers  had  had  no  previous  personal  ex- 
perience with  transports,  and  the  history  of  the  Vera  Cruz  expedition 
of  the  Mexican  War  appeared  to  have  been  forgotten ;  so  General  Shaf- 
ter's  magnificent  corps  was  sent  to  Santiago,  inadequately  equipped,  and 
had  the  navy  not  come  to  the  rescue,  the  whole  campaign  must  of  neces- 
sity have  been  a  failure  through  the  impossibility  of,  or  long  delay  in, 
effecting  a  landing.  Once  in  contact  with  the  enemy,  the  American 
army,  as  usual,  added  laurels  to  its  already  long  list  of  successful  cam- 
paigns. In  face  of  all  theory  and  academic  teaching  victory  was  wrested 
from  brave  and  well-armed  adversaries,  but  the  general  and  honest 
opinion  of  army  men  well  qualified  to  judge  is,  that  an  extremely  lucky 
star  hovered  over  America  during  the  war  with  Spain. 

The  expedition  to  Porto  Rico,  and  'that  across  the  wide  Pacific  to  Manila 
were  sent  with  less  haste,  and  therefore  better  equipped.  But  experi- 
ence was  being  obtained,  and  now,  after  having  become  possessed  of  a 
magnificent  fleet  of  transports,  the  quartermaster  department  is  enabled 
to  point  with  just  pride  to  four  years  of  such  successful  endeavor  that  its 
record  is  not  exceeded  by  that  of  any  of  the  great'  steamship  lines.  This 


ARMY  AND   NAVY  625 

service  ultimately  reached  such  a  degree  of  efficiency  that  thousands  of 
troops  have  been  transported  seven  thousand  miles  across  the  Pacific  in 
sufficient  comfort  to  have  them  ready  for  immediate  field  service  on 
arrival. 

With  the  signing  of  the  protocol,  it  became  necessary  to  reduce  the 
forces,  but  as  the  Spanish  army  in  Cuba  was  still  intact,  it  was  decided 
to  proceed  at  once  with  the  muster  out  of  only  100,000  volunteers.  The 
occupation  of  posts  in  Cuba  to  be  evacuated  by  Spanish  garrisons  em- 
ployed 50,000  troops.  The  question  of  withdrawing  the  volunteers  from 
the  Philippine  Archipelago  caused  the  War  Department  much  concern. 
Peace  once  an  accomplished  official  act,  all  volunteers  would  become 
entitled  to  discharge.  The  department  concluded,  therefore,  to  ask 
outright  for  a  regular  army  of  100,000  men,  and  the  House  of  Represen- 
tatives passed  a  bill  to  that  effect,  but  the  minority  in  the  Senate  took 
up  a  line  of  speechmaking  concerning  the  administration's  Philippine 
policy  and  stifled  the  bill.  To  avoid  an  extra  session,  the  minority  was 
allowed  to  dictate  a  compromise  of  a  temporary  regular  army  and  an- 
other force  of  volunteers.  The  muster  out  of  the  volunteers  for  the  war 
with  Spain  was  completed  as  rapidly  as  possible,  having  in  mind  the 
economy  of  the  moment  as  well  as  protection  from  fraudulent  claims 
for  pensions  in  the  future. 

In  the  Philippines  the  army  was  confronted  with  many  serious  prob- 
lems, the  solution  of  which  demanded  a  showing  of  well-organized  force. 
The  enlistment  and  transportation  of  volunteers  to  a  scene  of  action 
ten  thousand  miles  from  their  homes  for  a  comparatively  brief  service, 
involved  such  an  appalling  expenditure  of  public  funds  that  the  President 
withheld  his  consent  to  the  organization  of  the  new  regiments  until  con- 
ditions became  so  critical  that  the  reenforcement  could  no  longer  be 
delayed.  The  excess  of  cost  of  this  force  of  volunteers  over  what  the 
cost  would  have  been  had  regulars  been  employed,  with  the  usual  three 
years'  enlistments,  has  been  estimated  by  the  various  staff  bureaus  to 
be  $16,374,009.04,  quite  an  item  even  in  these  days  of  abounding  pros- 
perity. The  new  volunteer  regiments  were  raised  and  commanded  by 
regular  officers,  and  were  splendid  organizations,  but  they  were  of  neces- 
sity brought  home  and  mustered  out  with  an  average  of  fifteen  to  eight- 
een months'  service  over  sea,  altogether  a  very  expensive  proceeding. 

The  exchange  of  troops  in  the  Philippines  to  enable  the  volunteers 
who  went  out  in  the  first  expedition  to  come  home,  was  effected  during 
active  insurrection  which  continued  until  a  force  of  nearly  70,000  men 
was  assembled  in  the  Islands.  The  War  Department  has  been  sub- 
jected to  much  criticism  concerning  the  conduct  of  the  army  while  quell- 
ing the  insurrection.  While  the  Department  has  not  come  unscathed 
from  the  wordy  conflict,  the  fact  remains,  if  recent  political  events  are 
correctly  interpreted,  that  the  army  has  never  stood  higher  in  the  con- 
fidence and  esteem  of  the  people  than  now.  Whatever  motives  may 

40 


626  AMERICAN   FEDERAL   GOVERNMENT 

have  actuated  the  detractors  of  the  army,  it  can  only  be  regretted  that 
the  conduct  of  the  Philippine  campaigns  has  been  made  a  matter  of 
political  controversy.  In  the  years  to  come  the  names  of  the  heroes  of 
the  swamp  and  jungle  campaigns  of  the  recent  past  will  be  found  upon 
the  pages  of  history  with  those  of  Yorktown,  Molino  del  Rey,  and  the 
Wilderness. 

It  became  evident  that  makeshift  devices  would  no  longer  serve 
the  purpose,  and  the  Secretary  of  War  presented  the  needs  of  the 
service  in  carefully  prepared  legislation,  which,  while  not  accomplishing 
everything  desired,  gave  the  Department  a  sufficient  force  to  meet  the 
urgent  demands  upon  the  army  in  Cuba,  Porto  Rico,  the  Philippines, 
Alaska,  and  at  home.  In  addition  to  an  increase  of  strength,  the  Depart- 
ment secured  the  long-contested-for  three  battalion  organization  for 
the  infantry  branch.  The  artillery  was  largely  increased  and  merged 
into  a  corps  which  enabled  the  department  to  concentrate  the  defense 
of  each  harbor  or  district,  including  submarine  adjuncts,  under  the  con- 
trol of  the  senior  artillery  officer. 

The  Secretary  of  War,  after  a  careful  study  of  the  situation,  with 
particular  reference  to  the  difficulties  encountered  at  the  outbreak  of  the 
war  with  Spain,  urged  and  secured  a  change  in  the  laws  which  had 
hitherto  perpetuated  the  staff  departments  as  close  corporations  by 
virtue  of  life  appointments.  A  detail  system  was  introduced  which  will 
gradually  supersede  the  old  method  of  permanent  appointments. 

The  variegated  character  of  the  militia  system  in  the  past  caused  the 
entire  force  which  volunteered  in  bodies  at  the  outbreak  of  the  war  with 
Spain  to  be  judged  by  the  weakest  and  most  inefficient  organizations. 
This  was  unjust  to  many  excellent  regiments,  but  the  penalty  paid  by 
them  for  the  association  may  be  considered  very  light  if  the  knowledge 
gained  by  the  country  at  large  eventuates  in  the  honest  reformation  of 
the  whole  system  and  the  placing  of  the  organized  militia  upon  a  basis 
of  self-respecting  efficiency.  Even  under  the  favorable  legislation  recently 
enacted,  it  will  require  a  long  time  to  perfect  the  details  of  the  system 
which  is  intended  to  secure  immediate  and  efficient  service  from  the 
militia  at  the  outbreak  of  war.  Our  forefathers  dreamed  of  the  militia 
as  the  bulwark  of  a  nation,  yet  the  system  failed  utterly  in  the  War  of 
1812.  The  " Continentals"  left  an  indelible  impression  on  the  pages 
of  Revolutionary  history.  The  Mexican  war  proved  the  value  of  United 
States  Volunteers  in  contradistinction  to  militia,  and  the  world  never 
saw  better  armies  than  those  composed  of  the  volunteers  of  1861  to  1865. 
The  National  Guard  organizations  were  recognized  in  1898,  but  no  effort 
was  made  to  call  into  service  the  "militia,"  as  contemplated  by  the 
Constitution.  In  all  proposed  legislation  for  improving  the  militia  many 
varying  opinions  are  advanced  as  to  interpretations  of  the  Constitution. 
This  does  not  obtain  in  regard  to  United  States  Volunteers,  who,  once 
mustered  into  the  service,  are  on  the  same  footing  exactly  as  regulars, 


ARMY  AND   NAVY  627 


except  as  to  length  of  enlistment.  At  the  outbreak  of  the  war  with  Spain, 
Congress  enacted  that  hereafter,  in  war,  the  army  shall  consist  of  the 
regular  army  and  the  volunteer  army;  in  the  former,  enlistments  are 
for  three  years,  and  in  the  latter  for  two  years.  This  departure  from  the 
teachings  of  the  Civil  War  was  not  called  for  by  any  emergency;  an 
enlistment  for  "three  years  or  the  war"  should  be  required  of  all  volun- 
teers, for,  if  this  is  not  done,  it  makes  it  difficult  to  fill  the  ranks  of  old 
and  valuable  regular  regiments  where  the  three  years'  enlistment  prevails. 

Ever  since  the  spring  of  1898  the  officials  of  the  War  Department  have 
discussed  the  confusion  which  arose  at  Tampa  and  elsewhere,  and  have 
constantly  sought  the  best  means  of  preventing  a  repetition  of  conditions 
which  might  lead  to  humiliation  and  temporary  defeat  in  a  war  with  an 
enterprising  and  audacious  enemy.  After  mature  consideration,  the 
Secretary  of  War  settled  upon  a  plan  for  the  establishment  of  a  General 
Staff  Corps,  with  a  chief  at  its  head  who  will  be  Chief  of  Staff  for  the 
whole  army.  Under  this  plan  the  misnamed  office  of  Commanding 
General  will  disappear.  It  has  ever  been  a  delusion  and  a  disappoint- 
ment for  the  distinguished  soldiers  who  have  occupied  it,  with  constant 
but  fruitless  efforts  to  invest  the  office  with  something  more  than  a  name. 
This  is  the  final  army  reform  of  a  general  nature,  to  the  accomplishment 
of  which  Secretary  Root  has  devoted  himself.  It  will  be  a  fitting  capstone 
to  the  long  series  of  definite  and  comprehensive  improvements  secured 
in  the  War  Department  and  army  methods  by  the  Secretary.  The  new 
scheme  once  in  successful  operation,  all  the  business  of  the  army  will  be 
brought  under  the  advisory  control  of  a  selected  and  highly  trained  body 
of  experts,  who,  working  in  harmony  with  all  the  bureau  chiefs,  should 
accomplish  cooperation  and  achievement  of  the  most  satisfactory 
character. 

And  now,  with  the  advent  of  the  third  year  of  the  new  century,  the 
great  wave  of  prosperity  which  followed  the  close  of  the  war  with  Spain, 
a  not  uncommon  result  of  wars,  has  reached  dimensions  far  beyond  the 
expectations  of  the  most  optimistic  of  our  public  men.  The  extension 
of  American  commerce  is  following  in  the  trail  of  war,  and  all  our  people 
are  participating  in  its  practical  results.  The  conduct  of  our  troops, 
and  the  frankness  and  honesty  of  our  policies,  in  Cuba,  the  Philippines 
and  China,  has  challenged  the  attention  of  the  civilized  world.  American 
diplomacy,  backed  by  our  highly  civilized  and  intelligent  troops,  has 
become  a  synonym  for  fair  dealing  and  unswerving  honesty.  There  is 
abundant  cause  for  pride  in  the  respect  now  entertained  for  the  United 
States  throughout  the  world,  as  evidenced  by  the  treatment  of  our  rep- 
resentatives. Resting  under  the  aegis  of  the  Constitution  and  an  honest 
interpretation  of  the  Monroe  doctrine,  there  is  no  possibility  of  the 
military  arm  ever  becoming  a  tool  to  subvert  our  own  or  the  liberties  of 
other  people.  Sophistry  and  concealment  find  no  place  in  our  treatment 
of  other  nations,  and  this  country  will  fulfil  its  duties  as  a  newly  dis- 


628  AMERICAN   FEDERAL   GOVERNMENT 

covered  world  power  with  only  such  an  army  and  navy  as  will  prevent  a 
decadence  of  the  military  art,  and  yet  strong  enough  not  to  offer  an 
invitation  to  attack. 


SPEECH   OF  HON.   ALBERT   F.   DAWSON   ON  NAVAL 
ADMINISTRATION  1 

THE  House  being  in  Committee  of  the  Whole  House  on  the  state  of  the 
Union,  and  having  under  consideration  the  bill  (H.  R.  20471)  making  ap- 
propriations for  the  naval  service  for  the  fiscal  year  ending  June  30,  1909,  and 
for  other  purposes  — 

Mr.  Dawson  said: 

Mr.  Chairman :  We  have  heard  the  naval  subject  discussed  here  this 
afternoon  from  a  scientific  standpoint,  a  sentimental  standpoint,  and,  I 
am  almost  tempted  to  add,  from  a  hysterical  standpoint.  I  would  like 
to  ask  the  committee  at  this  hour  to  consider  it  from  the  business  stand- 
point, and  to  direct  attention  to  one  of  the  most  important  questions  in 
the  whole  naval  service  —  the  question  of  naval  administration. 

Mr.  Chairman,  this  is  not  a  sentimental  proposition;  this  is  a 
great  business  proposition,  involving  as  it  does  the  expenditure  of  the 
$100,000,000  which  we  appropriate  annually  for  this  great  arm  of  the 
national  defense.  Upon  this  problem  of  administration  rests  the  question 
of  whether  these  millions  are  expended  economically  and  wisely  or 
whether  they  shall  be  expended  wastefully  and  extravagantly.  But  this 
question  of  naval  administration,  Mr.  Chairman,  is  even  more  than  a 
business  proposition.  It  is  a  question  which  goes  to  the  very  root  of  the 
efficiency  of  the  naval  service  itself;  it  has  a  most  important  bearing 
upon  the  efficiency  of  the  material  of  the  Navy ;  it  is  vital  to  whether  or 
not  we  will  have  good  guns,  good  ammunition  and  good  ships;  it  is 
vital  likewise  to  the  personnel  of  the  Navy,  because  on  the  question  of 
administration  depends  the  esprit  de  corps  of  the  officers  and  men  of 
the  entire  Navy. 

It  may  be  a  matter  of  surprise  to  some  Members  of  the  House  to  know 
that  the  present  administrative  organization  of  the  Navy  Department  is 
almost  seventy  years  old.  Is  it  any  wonder,  Mr.  Chairman,  with  the 
tremendous  advances  that  have  been  made,  both  in  naval  and  in  com- 
mercial matters,  during  these  seventy  years  that  the  present  administra- 
tive system  in  the  Navy  Department  does  not  measure  up  to  present-day 
business  standards?  I  say,  is  it  any  wonder  that  this  system  of  admin- 
istration is  outworn,  out  of  date,  and  obsolete? 

The  present  plan  of  administration  in  the  Navy  Department  was 

1  Congr.  Record,  Reported  April  15,  1908. 


ARMY  AND   NAVY  629 

adopted  in  1842,  and  the  law  has  been  only  slightly  amended  since.  At 
that  time,  upon  the  recommendation  of  Secretary  Upshur,  Congress 
passed  a  law  creating  five  bureaus  in  the  Navy  Department.  Since  that 
time  three  other  bureaus  have  been  added,  with  some  rearrangement 
and  readjustment  of  duties,  and  now  we  have  in  the  Navy  Department 
eight  separate  bureaus,  as  follows: 

Navigation,  having  charge  of  the  personnel  and  the  movements  of  the  fleet, 
under  the  direction  of  the  Secretary  of  the  Navy. 

Yards  and  Docks:  The  construction  and  maintenance  of  public  works  in 
navy  yards  and  at  naval  stations. 

Supplies  and  Accounts:  Provisions,  clothing,  small  stores,  accounts,  and 
pay  of  the  Navy. 

Medicine  and  Surgery:  Its  name  explains  its  duties. 

Construction  and  Repair:  The  ships'  hulls,  turrets,  ammunition  hoists,  etc. 

Steam  Engineering:  Steam-propelling  machinery  of  the  ships. 

Ordnance :  Guns,  ammunition,  and  parts  of  the  electrical  machinery  on  the 
ships. 

Equipment:  Equipment  of  ships,  and  supplying  most  of  their  electrical 
apparatus. 

It  should  be  remembered,  Mr.  Chairman,  as  we  go  along,  that  the 
Bureau  of  Construction  and  Repair,  the  Bureau  of  Steam  Engineering, 
the  Bureau  of  Ordnance,  and  the  Bureau  of  Equipment  are  the  ones 
principally  concerned  in  the  construction  and  the  repair  of  ships. 

Under  the  law  as  it  stands  now  it  is  provided  that  the  orders  of  these 
chiefs  of  bureaus,  pertaining  to  their  respective  duties,  shall  be  considered 
as  emanating  from  the  Secretary  of  the  Navy,  and  "  shall  have  full  force 
and  effect  as  such."  Mark  that.  The  orders  of  each  chief  of  bureau 
shall  have  the  full  force  and  effect  as  though  the  orders  had  been  issued 
by  the  Secretary  of  the  Navy  himself.  In  other  words,  instead  of  one 
head  of  Department  we  have  under  this  old  organization  nine  heads 
operating  within  one  Department. 

There  is  nothing  in  existing  law  which  provides  for  any  cooperation 
or  any  coordination  among  those  several  bureaus.  Each  is  entirely 
independent,  subject  only  to  the  Secretary  himself.  They  all  stand  on 
an  equal  footing.  Under  the  law  each  bureau  may  proceed  in  its  own 
way  according  to  the  chief's  idea  of  what  is  for  the  best  interest  of  that 
bureau.  The  system  is  lacking  in  that  one  feature  that  is  most  essential 
for  good  administration  and  best  results — there  is  no  single  controlling  in- 
fluence below  the  Secretary  to  correlate  the  work  of  the  different  bureaus. 
Thus  responsibility  is  divided  among  eight  different  heads,  which  has 
the  effect  of  there  being  practically  no  responsibility  at  all  for  the  work 
as  a  whole.  Secretary  Moody,  when  he  was  at  the  head  of  that  great 
Department,  recognized  and  set  forth  in  his  annual  report  some  of  the 
defects  of  the  system  as  he  found  them.  What  did  he  say  ? 


630  AMERICAN  FEDERAL   GOVERNMENT 

The  distribution  of  business  among  bureaus  independent  of  and  correlated 
to  each  other  (except  through  the  action  of  the  Secretary)  unquestionably 
creates  the  condition  out  of  which  grow  conflicts  of  jurisdiction  between  the 
bureaus,  sometimes  injurious,  and  a  tendency  to  consider  the  interests  of 
the  bureaus  rather  than  the  interests  of  the  Navy.  The  division  of  business 
in  the  bureaus  extends  to  the  navy  yards  and  even  to  some  extent  to  ships 
in  commission.  This  leads  sometimes  to  excessive  and  cumbersome  organ- 
ization, and  lack  of  harmony  of  effort  resulting  from  the  fact  that  there  is  no 
coordination  except  by  the  voluntary  action  of  the  bureau  chiefs. 

That  is  testimony  of  one  who  was  in  the  Department  long  enough  to 
familiarize  himself  with  conditions  there.  But,  Mr.  Chairman,  how  does 
this  system  operate,  both  in  the  Department  and  in  the  navy  yards 
throughout  the  country  ?  Perhaps  we  can  best  determine  the  character 
of  its  operation  by  examining  its  work  in  the  repair  of  ships,  which  is 
conducted  at  these  navy  yards.  Last  summer  the  Committee  on  Naval 
Affairs  made  a  tour  of  inspection  of  all  the  navy  yards  on  the  Atlantic 
coast  from  Norfolk  north  to  Portsmouth,  and  we  went  in  and  examined 
carefully  the  condition  at  each  of  these  yards.  This  examination  dis- 
closed a  wasteful  duplication  and  multiplication  of  plants,  buildings, 
and  equipment  which  can  not  be  otherwise  than  extravagant  in  the  ex- 
penditure of  the  public  money,  and  it  emphasized  the  necessity  for  some 
consolidation  of  bureaus.  Each  of  the  four  bureaus  which  have  to  do 
with  the  repair  or  the  construction  of  ships  had  at  the  different  navy 
yards  a  separate  and  independent  plant.  Each  had  sought  to  build  up 
its  own  bureau  there,  that  it  might  be  entirely  independent  of  all  the 
others.  Thus,  at  every  one  of  these  navy  yards,  instead  of  finding  one 
complete,  fully  organized,  well-trained  enterprise,  we  found  what  was 
virtually  four  separate  plants  at  each  yard. 

Each  of  the  bureaus  has  its  own  force  of  workmen,  each  has  its  own 
machinery,  its  own  buildings,  and  its  own  peculiar  method  of  doing 
business.  For  instance,  at  the  navy  yard  at  New  York  we  found  that 
the  Bureau  of  Construction  and  Repair  had  a  paint  shop,  and  so  did  the 
Bureau  of  Yards  and  Docks,  the  Bureau  of  Equipment,  and  the  Bureau 
of  Steam  Engineering  —  Equipment  maintaining  a  shop  with  three 
painters,  while  the  Steam  Engineering  had  another  shop  in  which  was 
employed  one  lone  painter.  The  same  was  true  of  the  carpenter  shops, 
except  the  Ordnance  Bureau  had  one  in  addition  to  these  other  four, 
making  five  carpenter  shops  in  a  single  yard.  Of  those  five  shops,  three 
were  employing  less  than  ten  men  each.  And  so  it  went.  What  was 
true  of  paint  shops  and  carpenter  shops  was  equally  true  of  pattern  shops, 
blacksmith  shops,  coppersmith  shops,  and  foundries. 

Will  anyone  contend  that  this  is  anything  except  a  most  wasteful  and 
extravagant  method  of  carrying  on  a  purely  industrial  business,  because 
the  repair  of  ships  is  not  military  in  its  character,  it  is  purely  the  industrial 
side  of  the  Navy  ?  Such  a  plan  of  course  requires  a  useless  duplication 


ARMY  AND   NAVY  631 

of  machinery,  of  buildings,  and  of  supervising  force.  But  this  condition 
is  only  the  natural  result  of  a  system  which  makes  each  bureau  inde- 
pendent of  the  other,  and  where  at  every  navy  yard  each  bureau  is  watch- 
ing every  other  bureau  with  jealous  eye.  With  Congress  making  separate 
appropriations  for  each  of  these  bureaus,  it  becomes,  as  one  naval  officer 
tersely  stated  it,  simply  a  game  of  "grab."  If  a  given  bureau  has  secured 
an  appropriation  for  a  new  building  at  a  certain  yard,  the  following  year 
each  of  the  other  bureaus  are  supplicating  Congress  to  treat  it  with  like 
liberality. 

This  whole  bureau  system,  as  exemplified  at  the  navy  yards,  is  un- 
businesslike ;  it  is  cumbersome  and  extravagant  and,  as  Secretary  Long 
so  well  said  in  one  of  his  official  reports  while  he  was  Secretary  of  the 
Navy,  "No  private  business  in  the  world  would  be  run  on  such  a  waste- 
ful and  inharmonious  plan." 

But  how  does  the  present  bureau  system  operate  in  the  Navy  Depart- 
ment itself?  The  public  has  had  many  striking  instances  within  the 
last  year  of  the  friction  and  contentions  that  arise  in  that  Department 
by  reason  of  the  fact  that  there  are  eight  separate  and  independent 
bureaus,  each  practically  supreme  in  the  duties  which  are  assigned  to  it 
by  the  Secretary  of  the  Navy.  The  heads  of  these  bureaus  are  but  human, 
and  it  is  too  much  to  expect  that  they  will  not  take  advantage  of  every 
opportunity  which  occurs  that  will  increase  the  magnitude  or  the  impor- 
tance of  their  respective  duties.  As  Secretary  Moody  says,  the  operation 
of  the  system  has  a  tendency  to  cause  the  bureau  chiefs  to  consider  "the 
interests  of  the  bureaus  rather  than  the  interests  of  the  Navy." 

I  hope  gentlemen  will  understand  that  I  am  not  criticising  individuals. 
I  am  simply  offering  these  suggestions  regarding  a  system  which  prevails, 
in  the  hope  that  we  can  accord  to  the  Navy  Department  in  due  course 
better  and  more  modern  machinery  with  which  to  conduct  the  work  of 
that  great  Department. 

I  need  not  relate  in  detail  the  incidents  which  have  arisen  from  time 
to  time,  and  some  of  which  have  been  alluded  to  in  this  debate,  showing 
the  clashing  of  interests  and  authority  under  this  system  of  independent 
bureaus,  each,  mind  you,  with  the  power  to  issue  independent  orders 
of  the  same  authority  as  those  issued  by  the  Secretary  of  the  Navy  himself. 

If  we  are  in  any  doubt  as  to  the  workings  of  this  system  in  the  Depart- 
ment, let  us  summon  a  witness  here  who  is  eminently  qualified  to  speak 
with  authority,  one  who  by  experience,  by  knowledge,  and  by  courage 
is  entitled  to  the  consideration  of  this  House.  I  allude  to  the  Hon.  John 
D.  Long,  who  for  five  years  was  Secretary  of  that  great  Department, 
and  it  might  be  added  parenthetically,  that  he  was  in  charge  of  that 
Department  for  a  longer  period  than  any  other  man  who  has  held  that 
portfolio  in  the  last  decade.  He  was  there  long  enough  to  understand 
the  workings  of  that  Department  and  to  master  its  defects.  He  recog- 
nized the  faults  of  the  existing  bureau  system,  and  in  his  annual  report 


632  AMERICAN   FEDERAL   GOVERNMENT 

for  1899  he  recommended  that  three  of  these  bureaus,  these  three  bureaus 
that  have  to  deal  with  the  construction  and  fitting  out  of  vessels,  should 
be  merged  into  a  single  bureau.  That  recommendation  was  as  follows : 

CONSOLIDATION  OF  BUREAUS 

In  the  opinion  of  the  Department  it  would  be  in  the  interest  of  good  business 
organization  and  economy  to  consolidate  the  three  Bureaus  of  Construction 
and  Repair,  Steam  Engineering,  and  Equipment  under  one  head —  the  Bureau 
of  Ships.  These  Bureaus  have  to  do  with  the  construction  and  fitting  out  of 
vessels;  in  one  word,  the  material  of  the  ship.  It  is  an  integral  work.  When 
a  contract  is  made  for  the  construction  of  a  ship,  it  is  made  with  one  builder. 
It  is  not  given  part  to  a  constructor  of  hulls,  part  to  a  steam-engine  manu- 
facturer, and  part  to  an  outfitting  firm.  Whatever  various  trades  enter  into  the 
work  are  all  under  one  head.  This  is  the  method  of  private  shipyards  which 
build  the  largest  ships  and  which  are  not  left  to  the  administration  of  three 
heads  between  whom  delicate  questions  of  respective  authority  and  responsi- 
bility are  liable  to  arise,  resulting  in  delays  and  too  often  in  friction  and  lack  of 
harmony  of  cooperation. 

Each  of  the  above  Bureaus  has  now,  during  tne  construction  of  naval  vessels, 
its  separate  inspectors  at  each  yard.  A  consolidated  bureau  could,  of  course, 
be  run  much  cheaper  than  three  bureaus,  and  a  great  saving  made  by  a  re- 
duction of  the  now  three  separate  working  forces,  both  clerical  and  mechanical, 
especially  in  our  navy  yards.  Fewer  naval  officers  would  be  needed,  as  there 
would  be  but  one  staff  instead  of  three,  so  that  more  officers  would  be  available 
for  other  duty.  Under  the  present  system  one  Bureau  brings  its  work  to  the 
point  of  readiness  for  the  work  of  another,  which  is  not  always  ready  for  it. 
There  is  necessarily  a  lack  of  that  adaptation  and  harmony  of  movement  which 
one  head  would  secure. 

If  this  consolidation  were  effected,  the  matter  of  furnishing  coal  and  other 
current  supplies,  which  is  now  under  the  direction  of  the  Bureau  of  Equipment, 
could  be  easily  transferred  to  the  Bureau  of  Supplies  and  Accounts,  and  such 
other  incidental  changes  made  as  became  necessary. 

The  foregoing  suggestion  is  made  solely  with  a  view  to  an  improvement  in 
departmental  organization,  and  with  the  highest  appreciation  of  the  ability  and 
dutifulness  with  which  these  Bureaus  have  been  administered  under  their 
present  heads.  Efficient  as  they  have  been,  however,  their  consolidation  is 
recommended,  because  it  is  believed  that  if  consolidated  under  the  direction  of 
any  one  of  their  present  heads,  or  of  any  competent  officer,  that  efficiency  would 
be  still  greater,  less  expense  incurred,  and  a  better  business  organization  would 
succeed. 

The  terms  of  office  of  the  chiefs  of  the  three  Bureaus  will  all  expire  in  a  little 
more  than  a  year,  one  of  those  officers  then  going  upon  the  retired  list,  and  it  is 
due  to  them  all,  as  an  assurance  that  the  change  is  recommended  on  systematic 
and  not  personal  grounds,  to  suggest  that  if  made,  it  shall  not  go  into  effect 
until  the  beginning  of  the  fiscal  year  after  the  expiration  of  their  said  terms. 

It  is  most  interesting,  in  the  consideration  of  the  workings  of  the  pres- 
ent system,  to  note  what  he  has  to  say  in  his  annual  report  for  the  year 
1900  when  he  renewed  that  recommendation.  Here  is  what  he  said: 


ARMY  AND   NAVY  633 


CONSOLIDATION  OF  BUREAUS 

The  recommendation  heretofore  made  that  the  organization  of  the  Navy 
Department  be  simplified  by  the  consolidation  of  the  three  Bureaus  of  Con- 
struction and  Repair,  Steam  Engineering,  and  Equipment  is  renewed.  Under 
the  present  system,  from  the  inception  of  its  design  until  completed  and  placed 
in  commission,  the  plans  and  specifications  of  a  naval  vessel  are  in  the  hands 
of  three  bureaus,  each  with  a  distinct  organization,  each  having  exclusive 
jurisdiction  within  certain  lines,  and  all  charged  with  the  duty  of  carrying  on 
work  within,  but  not  beyond,  their  respective  provinces,  as  nearly  as  may  be 
at  the  same  time. 

Such  a  system  is,  in  practical  administration,  cumbrous  and  expensive,  and 
from  its  very  nature  tends  to  develop  controversies  respecting  the  scope  of  each 
bureau's  duties  and  to  occasion  friction,  delay,  and  want  of  harmony  in  doing 
whatever  approaches  border  lines  of  jurisdiction.  It  is  to  the  credit  of  the 
officers  in  charge  of  the  bureaus  concerned  that  work  upon  ships  now  under 
construction  has  been  carried  on  without  more  friction;  but  the  system  itself 
is  none  the  less  objectionable,  and  is  a  source  of  inconvenience,  delay,  largely 
increased  cost,  and  occasional  confusion. 

The  present  divided  organization  is  the  outgrowth  of  conditions  which  no 
longer  exist.  The  hull,  the  propelling  machinery,  and  the  articles  of  equip- 
ment of  a  modern  steamship  no  longer  constitute  simple,  -distinct,  and  sep- 
arable elements  in  construction,  but,  on  the  contrary,  in  their  multiplicity  of 
details  are  so  interwoven  as  to  render  embarrassing  their«supervision  by  three 
sets  of  independent  administrative  officials. 

The  union  of  these  three  bureaus,  the  chief  function  of  which  is  to  deal  with 
the  material  of  the  ship,  into  one  bureau,  which  might  appropriately  be  called 
the  "  Bureau  of  Ships;"  the  consolidation  of  their  several  corps  of  assistants 
and  inspectors,  and  the  conduct  of  the  really  integral  work  of  building  and 
equipping  vessels,  under  the  management  of  one  responsible  chief  instead  of 
three  chiefs,  would  promote  the  efficient  and  economical  administration  of  this 
important  part  of  the  business  of  the  Navy  Department. 

A  chief  of  bureau  is  practically  an  assistant  secretary.  The  proposed  con- 
solidation would  not  only  reduce  three  of  these  assistants  to  one,  but  in  like 
manner  reduce  the  supervising,  mechanical,  and  clerical  forces  in  every  navy 
yard,  and  thus  save  great  and  unnecessary  expense.  At  present  each  of  these 
bureaus  in  question  has  at  each  yard  its  separate  shops,  inspectors,  foremen, 
and  workmen,  all  often  doing  the  same  kind  of  work.  No  private  business  is 
run  on  such  a  wasteful  and  inharmonious  plan.  I  renew  the  recommendation 
in  this  respect  of  my  last  annual  report. 

Let  me  cite  to  the  House  one  or  two  instances  to  show  the  compli- 
cations arising  out  of  the  present  divided  organization  in  the  Navy  De- 
partment to  which  Secretary  Long  alluded.  In  the  installation  of  the 
fire-control  apparatus  on  a  battle  ship  —  and  you  all  understand  what 
the  fire-control  apparatus  is ;  it  is,  in  comparison  with  the  other  elements 
of  the  ship,  a  very  simple  matter  —  it  would  naturally  be  supposed  that 
one  bureau  would  be  sufficient  to  install  the  fire-control  apparatus,  and 


634  AMERICAN  FEDERAL   GOVERNMENT 

yet  under  the  existing  system  three  separate  and  distinct  bureaus  have 
.cognizance  of  the  installation  of  this  apparatus  on  a  battle  ship.  Again, 
we  find  that  the  Bureau  of  Steam  Engineering  owns  the  steam  pipes  on 
the  pumps  and  the  engines  which  are  under  the  jurisdiction  of  the  Bureau 
of  Construction  and  Repair.  The  Bureau  of  Steam  Engineering  like- 
wise controls  the  deck  hatches  and  gratings  leading  to  the  boiler  and 
engine  rooms,  and  also  that  part  of  the  hull-drainage  pipes  that  drain 
these  compartments.  Countless  other  instances  might  be  cited  to  show 
that  the  lines  of  authority  between  the  different  bureaus  within  a  single 
battle  ship  are  mixed  in  bewildering  confusion.  These  are  not  faults  of 
the  bureau  method,  but  they  are  faults  of  the  bureau  system  which,  in 
its  present  form,  can  not  be  adjusted  to  suit  the  natural  divisions  in 
shipbuilding  which  have  come  about  by  reason  of  the  change  from 
wooden  sailing  vessels  to  steel  steamships. 

I  am  not  one  of  those  Members  of  this  House  who  believe  that  he  has 
done  his  duty  in  any  matter  when  he  has  pointed  out  the  defects.  It  is 
easy  enough  to  criticise;  anybody  can  find  fault.  I  believe  it  is  equally 
a  part  of  his  duty  to  come  forward  with  some  remedy  to  correct  existing 
defects  as  he  may  find  them.  In  my  judgment,  Mr.  Chairman,  the 
remedy  for  the  present  situation  which  exists  in  the  administration  of 
the  Navy  Department  rests  in  reorganization  and  in  the  consolidation 
of  certain  bureaus  in  that  Department. 


NAVAL   ADMINISTRATION1 

BY  T.  G.  ROBERTS,  NAVAL  CONSTRUCTOR,  U.  S.  N. 

IT  is  necessary  to  recognize,  in  the  first  place,  that  three  separate  and 
distinct  methods  of  administration  are  found  within  the  operations  of 
the  Navy  Department,  comprising  what  we  understand  as  naval  admin- 
istration. These  three  divisions  may  be  classified  under  the  heads  (i) 
Political,  (2)  Military,  and  (3)  Industrial. 

The  political  system  is  represented  by  the  head  of  the  Navy  Depart- 
ment, who  is,  and  ever  will  be,  a  civilian,  because  the  spirit  and  essence 
of  our  Government  is  based  on  a  subjection  of  the  military  to  the  civil 
institution. 

The  political  administration,  as  above  classified,  is  frequently  referred 
to  as  civil  administration,  which  it  is;  but  so  also  is  industrial  admin- 
istration, and  to  avoid  confusion,  the  foregoing  classification  will  be  ad- 
hered to  throughout. 

Military  administration  refers  to  that  under  the  line  officers,  who 
alone  are  eligible  to  the  supreme  command  of  a  ship,  a  squadron,  or  a 

1  Part  of  a  paper  read  before  the  United  States  Naval  Institute  in  1905,  and  reprinted 
in  the  Congr.  Record,  April  15,  1908. 


ARMY  AND   NAVY  635 

fleet.  Line  officer  means  a  naval  officer  in  the  line  of  promotion  to  such 
command.  The  functions  are  purely  military,  and  the  purely  military 
field  of  operations  finds  its  most  correct  example  on  board  a  ship  or  in  a 
fleet.  Shipboard  administration  will  be  considered  the  exact  expres- 
sion of  military  administration  in  the  Navy.  The  strategy  and  directing 
power  of  a  fleet  are  included  in  the  same  definition. 

By  industrial  administration  is  meant  that  portion  engaged  in  the 
production  and  manufacture  of  a  ship  and  its  accessories,  which  may 
be  more  closely  defined  as  those  departments  engaged  in  procuring  ma- 
terials and  operating  civilian  mechanics  in  producing  the  ship.  Navy- 
yard  administration  is  industrial  in  all  that  applies  to  workshop  and 
civil  employees  as  found  to  exist  in  the  analogous  institution  of  a  pri- 
vate shipyard,  being  military  only  by  virtue  of  the  supreme  authority 
vested  in  a  commandant. 


(i)  POLITICAL  ADMINISTRATION 

The  Secretary  of  the  Navy  represents  the  political  administrator. 
Politics  is  our  method  of  securing  government  of  the  people,  by  the 
people,  for  the  people.  The  politically  successful  man  is  one  selected 
by  the  majority  as  their  representative,  because  of  personal  attributes 
most  acceptable  to  the  people,  whose  actions  the  people  believe  will  be 
most  agreeable  to  themselves  concerned.  He  is,  presumably,  the  em- 
bodiment of  our  form  of  government,  and  to  his  authority  the  military 
and  industrial  considerations  must  bow. 

The  political  feature  finds  its  expression  in  various  ways  in  naval 
administration,  over  and  above  all  other  considerations  contemplated 
in  the  military  establishment  as  laid  down  in  the  Navy  regulations. 
If  a  ship  must  be  overhauled  and  repaired  and  two  navy  yards  desire 
to  get  the  work,  the  workmen's  representatives  that  clamor  loudest 
usually  get  it,  that  being  the  will  of  the  majority  that  care  anything 
about  it.  Within  the  service  the  opinion  always  holds  that  such  matters, 
as  all  others,  should  be- determined  by  the  absolute  merits  of  the  case, 
regardless  of  clamors.  The  military  administrator  must  determine  his 
actions  by  merit,  that  being  the  root  and  foundation  of  his  education 
and  training,  and  he  cares  little  about  the  will  of  the  people  where  his 
position  is  not  influenced  by  such  a  regard.  A  naval  officer  is  not  in 
the  best  position  to  be  a  political  administrator  —  he  can  read  from  the 
mercurial  barometer  an  approach  of  a  storm  at  sea,  but  he  is  handi- 
capped where  it  comes  to  feeling  the  pulse  of  the  people  from  the  touch 
of  the  political  barometer. 

Political  administration  finds  its  way  into  the  service  in  shifting  ships 
and  work  from  one  station  to  another,  in  shifting  personnel  in  like  man- 
ner, in  the  location  of  navy  yards  and  naval  stations,  in  appropriations 
for  new  buildings  and  new  expenditures  of  all  kinds  at  the  various  sta- 


636  AMERICAN   FEDERAL   GOVERNMENT 

tions;  it  determines  whether  vessels  shall  be  built  or  repaired  at  navy 
yards.  In  time  of  war  political  considerations  divert  naval  vessels  from 
the  fleet  to  patrol  the  coasts  in  the  vicinity  of  frightened  political  com- 
munities. It  has  given  high  position  to  political  favorites  and  has  deter- 
mined the  command  of  ships  and  squadrons.  Sometimes  it  goes  even 
farther  and  influences  the  actions  of  naval  boards  in  their  duties  under 
the  regulations.  Boards  have  been  known  to  have  their  recommenda- 
tions returned  for  revision  until  they  meet  the  political  desires,  or  another 
board  may  be  called  to  reverse  their  actions,  and  so  on  until  the  desired 
results  are  attained.  This  operates  to  promote  personnel  in  some  cases, 
or  discharge  or  retire  it  in  others.  It  operates  sometimes  to  increase  the 
pay  of  the  navy-yard  mechanic.  Its  existence  has  been  alleged  in  politi- 
cal contests  against  nonpartisan  shipbuilders  in  the  trials  of  vessels,  and 
it  shows  itself  in  various  forms  in  the  distribution  of  contracts  for  new 
ships,  and  is  constantly  at  work  in  the  purchase  and  acceptance  of  all 
sorts  of  materials  for  Government  use.  The  head  of  a  Government  De- 
partment is  sensitive  to  the  representations  of  the  people;  if  he  is  not, 
someone  soon  takes  his  place  who  is.  Of  course  there  have  been  abuses, 
as  in  every  other  department  of  life,  but  a  good  administrator  knows 
enough  not  to  try  to  reform  the  people  or  the  political  system  of  which 
he  is  a  part;  he  does  his  part  best  if  he  recognizes  facts  as  they  exist; 
and  he  concedes  to  political  demands,  if  they  are  logical,  where  it  makes 
no  material  difference  otherwise,  and  where  it  does  not  interfere  with  the 
object  for  which  his  institution  was  created. 

I  am  not  attempting  to  lay  down  rules,  but  merely  to  place  an  esti- 
mate on  what  appears  to  have  been  the  guiding  features  of  political  ad- 
ministration from  the  evidences  that  have  come  to  notice  in  the  past. 

Is  such  a  political  government  an  abuse  ?  Should  the  people  rule  the 
people  ?  If  the  public's  wishes  be  disregarded,  the  Government  becomes 
autocratic  by  definition,  and  how  else  can  their  wishes  be  made  known 
except  through  their  representatives?  If  reform,  who  will  attempt  it, 
and  how  ?  Would  the  creation  of  a  general  staff,  or  any  other  sort  of  a 
mechanism  inside  the  Navy  Department  destroy,  limit,  or  influence  in 
any  way  the  politics  of  the  head  of  the  Department  as  it  applies  to  the 
military  and  industrial  establishments  ?  It  may  as  well  be  conceded,  in 
the  light  of  history,  that  the  political  administration,  whatever  its  good 
or  evil,  will  remain  untrammeled  as  long  as  our  form  of  government 
exists. 

(2)  MILITARY  ADMINISTRATION 

Only  on  board  a  naval  vessel  does  military  discipline  hold  complete 
sway.  The  order  of  the  captain  is  the  law  and  must  be  obeyed  without 
question,  argument,  or  appeal  to  a  higher  power.  The  captain  must 
confine  his  actions  to  the  limits  prescribed  by  law,  but  inside  those 


ARMY  AND   NAVY  637 

limits  he  can  cover  almost  any  sort  of  overbearing  conduct  toward  those 
beneath  him,  officers  and  men  alike.  He  can  not  strike  them,  or  punish 
them  physically  beyond  the  lawful  limit;  but  he  can  harangue  them 
and  institute  such  a  personal  bearing  toward  them  as  to  punish  them 
mentally  beyond  degree.  There  is  no  appeal  from  an  order,  which  must 
be  obeyed  with  alacrity  whether  right  or  wrong,  and  he  who  refuses 
classifies  his  actions  with  the  mutineers,  the  limit  of  which,  in  grave  cases, 
is  death.  He  who  answers  back  goes  to  prison,  but  he  can  not  resign  or 
be  discharged.  I  am  merely  specifying  the  limits  in  order  to  distinguish 
more  clearly  between  military  and  industrial  administration  and  to  show 
that  a  trained  military  administrator  is  as  different  from  an  industrial  as 
from  a  political  administrator. 

Our  bureau  system  is  represented  in  miniature  on  the  ship.  The 
captain  represents  the  Bureau  of  Navigation,  which  directs  his  own 
actions  and  the  movements  of  the  ship.  Although  the  other  bureaus 
are  represented,  not  one  of  them  has  any  right  or  power  of  appeal  that 
would  modify  in  the  least  the  perfect  and  absolute  control  of  the  directing 
administrative  bureau  and  its  captain  in  the  wielding  of  the  ship  as  a 
fighting  machine.  In  this  point  it  differs  from  navy-yard  administra- 
.  tion,  as  we  shall  see  presently.  The  executive  officer  represents  the 
Bureau  of  Construction  and  Repair,  and  the  ordnance,  equipment,  med- 
ical, pay,  and  marine  officers  represent  the  corresponding  bureaus.  In 
the  operation  of  the  bureau  system  in  the  use  of  tools,  stores,  etc.,  there 
are  no  conflictions;  they  are  used  where  needed  indiscriminately  by 
shipboard  authority  or  without.  If  one  bureau's  machine  breaks  down 
another  bureau's  force  repairs  it,  if  more  handy.  The  bureau  represen- 
tatives themselves  are  not  expert  in  the  lines  of  demarcation  and  cogni- 
zance of  the  bureaus,  a  line  officer  representing  a  staff  bureau,  and  there 
is  no  provision  for  appeal  beyond  the  ship  if  one  should  so  desire.  In 
other  words,  the  captain  has  complete  control  of  the  ship  and  all  her  ac- 
cessories, and  the  bureau  system  divides  the  duties  of  officers  into  a 
convenient  distribution  of  the  work.  Military  efficiency  is  attained  by 
drilling,  innate  intelligence,  alacrity  in  obedience  to  orders,  and  the 
good  example  and  rigid  discipline  that  must  be  maintained  by  the  officers 
at  all  hazards.  Admiral  Farragut  laid  down  a  military  rule  for  all  time 
when  he  said  to  his  officers:  " Whatever  is  to  be  done  must  be  done 
quickly."  Shipboard  efficiency  consists  in  preparedness  and  alacrity. 
It  has  little  to  do  with  dollars  and  cents.  Military  economy  is  exer- 
cised in  taking  care  of  the  materials  and  avoiding  waste,  in  about  the 
same  way  as  one  would  take  care  of  a  new  suit  of  clothes,  or  would  eat 
sparingly  of  his  provisions  during  a  long  journey.  It  has  nothing  to  do 
with  saving  money  by  a  judicial  distribution  of  the  laboring  forces,  to 
obtain  the  best  returns  for  the  money  expended,  which  forms  the  essence 
of  industrial  administration. 

On  the  contrary,  shipboard  administration  contemplates  expending 


638  *  AMERICAN  FEDERAL   GOVERNMENT 

the  maximum  amount  of  labor  in  order  to  fill  up  the  time.  Those  who 
have  been  to  sea  know  the  monotony  of  having  nothing  to  do,  which 
tends  to  generate  the  spirit  of  unhappiness.  Hence,  the  sailor's  proverb 
that  the  best  commander  keeps  his  crew  happy  by  keeping  them  busy. 
Happiness  is  healthy  for  the  mind,  labor  is  healthy  for  the  body,  and 
these  essentials  permit  of  the  attainment  of  military  preparedness, 
alertness,  and  efficiency.  Industrial  economy  is  a  different  profession. 
It  is  a  law  of  humanity  that  a  man  is  most  proficient  in  the  line  of  his 
ambitions.  The  highest  ambition  of  a  line  officer  is  to  command  at  sea. 
In  that  position  the  eyes  of  the  whole  world  may  be  turned  on  him  in 
war,  and  his  name  may  be  in  every  mouth.  He  may  bring  honor  or  dis- 
grace to  his  country.  He  must  be  a  specialist  in  the  strictest  sense,  but 
not  a  general  practitioner.  Besides  familiarity  with  the  methods  of 
wielding  the  men  and  the  tools  at  his  disposal,  he  must  be  familiar  with 
strategy,  international  law,  naval  history,  navigation,  and  tactics.  None 
can  afford  to  be  an  indifferent  expert  in  these  branches,  for  a  single 
blunder  in  one  might  lose  all.  No  profession  in  civil  life  forms  any  sort 
of  analogy  or  comparison  to  that  of  a  line  officer,  and  it  is  a  matter  of 
current  belief  that  the  easy  habits  and  disciplinary  notions  of  naval 
training  unfit  an  officer  for  civil  pursuits;  and  it  is  likewise  apparent 
that  civilians  never  have  been,  and  can  not  be,  eligible  to  the  position 
of  a  line  officer  without  the  necessary  course  of  training.  It  requires  no 
analytical  mind  to  discern  the  irreconcilable  differences  between  indus- 
trial and  military  administration. 

(3)  INDUSTRIAL  ADMINISTRATION 

The  peaceful  arts  of  the  shipbuilding  mechanics  comprise  the  in- 
dustrial features  of  naval  administration,  as  is  represented  by  a  navy 
yard.  The  business  of  such  an  institution  is  to  manufacture,  repair,  or 
assemble  the  vessel  and  her  outfit.  The  production  of  the  vessel  belongs 
purely  to  civil  industry,  being  the  product  of  the  shipbuilding  trades 
under  the  cognizance  of  labor  unions.  The  pay  of  a  sailor  is  merely 
nominal  in  comparison  with  that  of  the  mechanical  tradesman,  which 
furnishes  an  opening  for  a  considerable  loss  of  funds  unless  the  quality 
of  administration  secures  the  best  combination  in  outlay  of  plant,  in 
the  purchase  and  handling  of  materials,  and,  most  important  of  all,  in 
the  distribution  and  handling  of  the  difficult  and  very  expensive  labor 
that  fills  up  the  navy  yards.  The  workmen  may  not  be  tongue-lashed, 
nor  put  in  the  brig,  but  they  may  be  discharged  if  the  administrator  has 
a  good  case. 

Now,  let  us  examine  the  operations  of  the  bureau  system  as  it  applies 
to  the  industry  of  a  navy  yard.  The  local  representatives  of  bureaus 
comprise  the  corresponding  departments  of  Construction  and  Repair, 
Steam  Engineering,  Equipment,  Yards  and  Docks,  Ordnance,  Supplies 


ARMY  AND   NAVY  639 

and  Accounts,  and  Medicine  and  Surgery.    The  Bureau  of  Navigation  is 
represented  by  the  commandant. 

The  division  of  work  assigned  to  each  bureau  or  department  is  a  de- 
velopment of  the  natural  and  convenient  divisions  that  existed  in  ship- 
building when  the  bureaus  were  first  formed  in  1842.  The  original 
Bureau  of  Construction,  Equipment,  and  Repair  controlled  practically 
all  the  industry  that  was  required  to  build  a  ship.  It  included  all  that 
is  now  represented  by  the  three  bureaus  Construction  and  Repair,  Equip- 
ment, and  Steam  Engineering,  the  latter  subdivisions  having  been  made 
in  1862  during  the  stress  of  war.  Had  the  Construction  Bureau  not 
been  thus  subdivided  there  would  be  a  different  tale  to  tell  about  the 
cost  of  navy-yard  administration  to-day.  But  no  one  could  have  fore- 
seen the  effect  at  that  date.  The  subdivisions  were  natural  ones,  inas- 
much as  the  Chief  Constructor  before  that  time  had  an  engineer  as 
assistant  to  look  after  the  steam  machinery  of  the  new  motive  power. 

The  wood  shipbuilder  viewed  with  suspicion  the  advent  of  steam, 
and  the  motive  power  of  the  future  passed  out  of  his  hands  to  those  who 
were  willing  to  master  it.  A  ship  was  then  a  simple  affair,  and  there 
was  no  question  as  to  where  the  propelling  machinery  left  off  and  where 
the  ship  began.  The  Equipment  Bureau  undertook  to  relieve  the  Con- 
struction Bureau  of  assembling  movable  articles  not  strictly  a  part  of 
a  ship,  but  corresponding  more  nearly  to  the  furnishings,  such  as  sails, 
rigging,  anchors  and  chains,  the  electrical  outfit,  and  the  like.  With 
the  changes  that  have  come  about  in  modern  shipbuilding,  the  steel 
ships  of  to-day,  with  their  complex  machinery,  have  merged  all  pro- 
fessions into  one.  The  wood  shipbuilder,  as  represented  in  the  modern 
shipwright,  has  been  driven  almost  out  of  business.  His  cognizance 
included  the  whole  vessel  in  1842,  while  now  he  is  limited  to  the  decks 
and  the  outside  sheathing,  if  any.  The  steam  engineer  finds  himself 
replacing  his  own  auxiliary  machinery  with  equipment  motors,  and  he 
has  to  tolerate  rival  steam  engines  that  form  essential  portions  of  the 
equipment  and  construction  machinery.  Likewise  the  Equipment 
Bureau  finds  rivals  with  electrical  machinery  in  the  Bureaus  of  Steam 
Engineering  and  Construction. 

The  original  natural  divisions  of  these  three  bureaus  have  become 
unnatural  and  very  complex  and  illogical.  All  three  operate  both  steam 
and  electrical  machinery,  and  generally  throughout  are  trying  to  do 
similar  work  that  now  falls  under  one  profession.  I  shall  not  endeavor 
to  relate  all  the  unreasonable  subdivisions  or  the  work  in  these  bureaus, 
but  will  cite  only  a  few  samples.  As  new  methods  have  been  adopted, 
each  bureau  has  claimed  as  much  of  the  work  as  possible,  and  each  head 
of  department,  disagreeing,  has  written  out  his  case,  and  all  the  papers 
have  gone  to  the  Secretary  of  the  Navy  for  decision.  In  the  meantime, 
in  many  instances  the  work  has  waited  several  months  until  the  matter 
was  settled.  The  decisions  have  not  followed  any  rule,  but  the  bureau 


640  AMERICAN   FEDERAL   GOVERNMENT 

in  most  favor  at  the  time  has  generally  won.  If  the  question  was  referred 
to  a  board  composed  mostly  of  line  officers,  the  decision  was  given  very 
frequently  to  the  line  officer  contestant,  if  there  was  the  slightest  possi- 
ble justification  for  it.  I  would  remark  here  that  with  a  general  staff  of 
pure  line  officers  to  pass  on  such  questions,  the  bulk  of  industrial  ad- 
ministration would  pass  from  the  staff  bureaus  into  the  hands  of  the 
military  administrators,  in  case  human  nature  should  not  unexpectedly 
reform.  To-day  the  department  of  Steam  Engineering  owns  the  steam 
pipes  of  Construction  pipes  and  engines,  the  deck  hatches  and  gratings 
and  their  fastenings  leading  to  the  boiler  and  engine  rooms,  and  also 
that  portion  of  the  hull  drainage  pipes  that  drain  these  compartments; 
Equipment  owns  the  dynamos,  and  the  dynamo  foundations  if  there  are 
any,  and  the  railing  around  them  if  attached  to  these  foundations.  Shall 
I  go  any  further  ?  Suffice  it  to  say,  that  the  lines  of  cognizance  between 
these  bureaus  are  more  mixed  up  than  the  present  Navy  pay  table.  The 
fault  is  not  in  the  bureau  method,  but  in  the  fact  that  the  bureau  system 
has  not  been  readjusted  to  suit  the  natural  divisions  of  shipbuilding  as 
they  exist  since  the  steel  ship  has  created  a  revolution  in  shipbuilding 
methods. 

Shipbuilding  was  originally  made  up  of  several  professions,  but  to- 
day it  has  merged  into  a  single  profession,  and  it  not  only  includes  the 
production  of  the  whole  ship,  but  it  operates  the  shipbuilding  plant,  by 
which  it  controls  the  profit  which  forms  the  measure  of  efficiency  in 
industrial  administration.  The  remedy  is  the  simplest  business  propo- 
sition in  the  country  —  consolidation.  There  is  no  economy  in  shifting 
cognizance  from  one  bureau  to  another,  as  now  organized;  each  de- 
partment has  developed  according  to  its  needs,  by  virtue  of  experience, 
and  to  shift  its  power,  plant,  or  shop  to  some  other  department  only 
acts  to  deprive  the  one  that  needs  it  and  prevents  the  responsible  party 
from  controlling  its  own  profits.  There  is  a  great  deal  of  talk  about 
consolidating  the  power  plants  of  a  navy  yard.  The  idea  seems  to  be 
that  only  the  power  plants  are  duplicated.  That  is  a  very  great  error. 
Everything  is  duplicated  and  multiplied.  In  the  navy  yard  with  which 
the  writer  has  been  associated  for  the  past  five  years  there  are  in  the 
several  departments  the  following  shops,  viz. : 

Six  power  plants,  eight  machine  shops,  five  joiner  shops,  five  paint 
shops,  five  laborers'  lobbies,  four  blacksmith  shops,  four  pattern  shops, 
four  tin  shops,  four  fuel-oil  plants,  four  testing  laboratories,  three  elec- 
trical workshops,  three  copper  shops,  three  riggers'  gangs,  three  polish- 
ing shops,  three  fuel-gas  plants,  three  foundries,  two  steel-plate  shops, 
two  electroplating  shops,  thirty-two  storehouses  under  separate  roofs, 
fifty  material  fields,  or  piles  of  materials  not  under  cover,  and  thirteen 
coal  sheds  and  bins  under  separate  roofs. 

The  shops  and  forces  of  the  departments  being  duplicated,  it  follows 
that  the  heads  of  departments,  and  hence  the  departments  themselves, 


ARMY  AND   NAVY  641 

are  pretty  nearly  duplicated,  which  is,  actually,  from  a  shipbuilder's 
point  of  view,  a  fact.  Nothing  short  of  industrial  consolidation  will 
be  worth  while,  and  the  establishment  should  not  only  be  consolidated, 
but  it  should  be  divorced  from  the  military,  so  to  speak;  that  is 
to  say,  the  one  shipbuilding  department  should  be  a  unit  under  the 
one  shipbuilding  head,  responsible  for  the  economy  of  the  work.  Our 
navy  yards  would  then  be  as  in  France.  We  are  moving  toward  the 
French  methods.  We  tried  the  British  Admiralty  Board  from  1779  to 
1781,  but  abolished  it.  It  was  tried  again  from  1815  to  1842  in  the 
form  of 'the  Navy  Commissioners,  but  it  was  again  abolished  as  being 
unsuitable.  Every  young  nation  tries  the  British  Admiralty  method. 
It  suits  England  for  reasons  purely  English.  The  posts  of  honor  and 
command  are  kept  in  the  aristocracy  for  the  benefit  of  the  younger  sons 
of  the  nobility.  The  line  of  the  British  navy  is  sought  by  them  as  a  pro- 
fession. The  "Board  of  Commissioners  for  the  Execution  of  the  Office 
of  Lord  High  Admiral  of  His  Britannic  Majesty's  Navy,"  belongs  to  a 
privileged  class.  In  this  country  we  expect  a  man  to  be  responsible 
only  for  what  he  knows ;  our  lords  of  industry  are  the  engineering  no- 
bility who  have  won  their  titles  by  actual  achievement  in  their  own 
particular  line. 

We  have  left  the  British  Admiralty  method  far  behind  long  ago  and 
are  approaching  the  French  system.  We  hear  of  a  general  staff  —  that 
is  what  we  sometimes  erroneously  translate  the  French  etat-major  to 
mean.  We  hear  that  we  need  a  "bureau  of  personnel"  and  a  "bureau 
of  materiel."  That  is  all  French  in  name  and  method,  and  all  our  own 
bureaus  are  adopted  and  named  after  the  French.  Then  let  us  have  the 
French  "bureau  of  materiel"  precisely  as  it  exists,  which  consolidates  all 
industrial  shops  and  works  under  the  one  head  of  "naval  construction"; 
its  directing  "personnel"  is  composed  of  "Ingenieurs  des  constructions 
navales."  It  includes  also  all  ordnance  workshops  and  fittings  in  navy 
yards.  Unlike  our  ordnance,  theirs  is  manufactured  by  civil  industry 
and  shipped  to  navy  yards,  where  it  is  handled  and  installed  by  the  de- 
partment of  naval  constructions.  French  navy-yard  industry  is  confined 
to  the  one  department,  which  combines  every  shop  and  tradesman  under 
a  single  head,  and  that  not  a  military  head,  nor  a  number  of  mixed 
military  and  industrial  heads,  but  rather  an  industrial  head  who  is  com- 
petent to  take  the  responsibility  for  the  things  he  knows,  the  things  of 
his  special  education  and  training,  the  things  of  his  pride  and  ambition, 
the  only  things  by  virtue  of  which  eminent  ability  may  permit  him  to 
rise  to  any  sort  of  distinction.  Not  that  he  needs  distinction  and  should 
be  allowed  to  attain  it,  but  that  the  human  composition  is  such  that  the 
best  efficiency  can  not  be  attained  by  any  other  inducements  in  a  system 
where  hope  of  reward  must  be  the  stimulus;  where  neither  capital, 
salary,  nor  interest,  from  a  personal  investment,  are  at  stake.  "Indi- 
vidual responsibility  reposing  in  the  head  who  instructed  in  the  things 

41 


642  AMERICAN   FEDERAL   GOVERNMENT 

he  is  responsible  for  is  at  the  root  of  efficiency."  Our  bureau  method  is 
preeminently  such  a  method,  and  is  the  most  perfect  yet  devised,  but 
has  become  uneconomical  for  the  plain  reason  that  the  system  of  the 
bureaus  has  not  been  readjusted  to  suit  the  natural  subdivisions  of  the 
present  times,  until  the  supposedly  "  sharply  defined  duties  and  respon- 
sibilities of  overspecialized  bureaus,"  to  adopt  Captain  Mahan's  diction, 
have  become  interlaced,  interwoven,  and  intertangled  to  such  an  extent 
as  to  exist  only  in  theory  and  imagination,  but  have  no  semblance  in 
reality. 

The  Bureaus  of  Construction  and  Repair,  Steam  Engineering,  Equip- 
ment, and  Yards  and  Docks  should  be  combined  under  the  heading  of 
Bureau  of  Naval  Construction;  the  Bureaus  of  Ordnance,  Supplies  and 
Accounts,  and  Medicine  and  Surgery  to  remain  practically  as  at  pres- 
ent; excepting  that,  as  in  France,  the  Bureau  of  Naval  Construction 
should  have  cognizance  of  its  own  materials  so  as  to  control  the  economy 
in  their  purchase  and  handling. 

The  Bureau  of  Ordnance  should  remain  as  now,  excepting  that  its 
duties  should  end  with  the  manufacture  and  shipment  of  ordnance  and 
armor;  its  plans  should  be  limited  to  these  items  and  should  not  include 
any  portion  of  the  vessel  to  which  they  are  applied.  This  is  in  order  to 
unify  the  manufacture  of  plans  at  the  Navy  Department  and  the  plans 
and  building  work  at  shipyards  as  the  nearest  approximate  measure  of 
economy.  Strictly  speaking,  ordnance  and  armor  belong  to  the  broad 
Division  of  Materiel,  along  with  the  rest  of  the  ship,  by  definition,  and 
by  the  example  of  the  Navy  furnishing  us  with  the  term,  and  hence,  logi- 
cally, should  be  combined  with  the  other  bureaus  of  materiel.  In  that 
event  it  would  become  advisable  to  detail  line  officers  as  inspectors, 
since  in  this  country,  unlike  some  other  countries,  naval  ordnance  has 
been  developed  and  manufactured  almost  purely  by  line  officers,  and  it 
would  not  be  advantageous  to  take  it  out  of  their  hands.  This  renders 
it  less  advisable  to  include  the  Bureau  of  Ordnance  in  the  consolidation ; 
but  since  the  ordnance  and  armor  factories  are  not  situated  so  as  to 
duplicate  work  of  any  kind,  a  result  almost  equal  to  consolidation  will 
be  obtained  by  consolidating  the  designs  and  building  of  ship  and  ma- 
chinery, exclusive  only  of  ordnance  and  armor,  under  the  single  industrial 
bureau.  This  arrangement  need  not  exclude  the  inspector  of  ordnance 
when  guns  are  being  installed  on  shipboard,  but  should  require  his  pres- 
ence, as  in  France. 

There  is  sufficient  evidence  to  believe  that  the  Bureau  of  Navigation 
has  grown  too  large  and  that  it  should  be  separated  into  two  bureaus, 
the  new  one  to  be  called  the  "Bureau  of  Personnel."  This  bureau  should 
take  over  the  items  suggested  by  its  name,  and  other  kindred  duties 
that  will  leave  only  the  items  concerning  strategy  to  the  Bureau  of 
Navigation.  The  latter  bureau  would  retain,  of  course,  the  Intelli- 
gence Office,  the  War  College,  the  direction  of  the  fleet,  war  plans,  and 


ARMY  AND   NAVY  643 

all  those  functions  which  go  to  make  up  the  sum  total  of  "the  wielding 
of  the  Navy  as  a  weapon" ;  and  besides  would  inherit,  from  the  defunct 
bureaus,  the  Naval  Observatory,  coaling  stations,  other  naval  stations, 
and  in  fact  everything  else  except  navy  yards,  stations,  and  docks  en- 
gaged in  the  building  or  repair  of  vessels.  I  merely  suggest,  not  advise, 
the  latter  subdivision.  It  can  not,  in  any  wise,  affect  industrial  ad- 
ministration. 

The  present  necessity  is  the  unification  of  navy-yard  industry,  so  that 
it  can  not  duplicate  itself,  and  so  that  naval  industrial  administration 
may  operate  in  the  full  benefit  of  modern  methods  as  developed  with 
such  eminent  success  in  the  private  industries  of  this  country.  All  power 
plants,  shops,  heads  of  departments,  assistants,  draftsmen,  clerks,  fore- 
men, leading  men,  and  mechanics  may  be  combined  into  one  set  of  each 
class  or  kind.  The  result  would  effect  a  reduction  of  the  number  of 
buildings  in  use,  the  working  forces,  and  the  total  cost  of  the  establish- 
ment by  an  amount  that  would  be  startling  to  predict.  The  military 
authority  should  remain  supreme  in  a  commandant,  but  the  industrial 
establishment,  being  in  subjection  to  the  military,  need  not  be  sub- 
divided into  a  number  of  mixed  administrations  interwoven  as  now, 
but  combined  and  divorced  as  a  pure  industrial  unit. 

EVILS  TO  BE  CURED 

Of  the  present  evils  of  greatest  moment  is  the  unsystematic  method  of 
laying  out  new  yard  plants  and  the  distribution  of  shop  buildings  among 
the  various  departments.  The  sites  for  the  plants  themselves  are  se- 
lected, usually,  by  people  having  an  eye  only  to  the  depth  of  water, 
facilities  for  military  protection,  and  the  nature  of  the  soil.  The  most 
important  economic  industrial  consideration  contained  in  the  contour 
of  the  site  and  water  frontage  and  in  the  economic  arrangement  of 
shops  have  seemingly  had  no  part  whatever  in  the  establishment  of  our 
navy-yard  plants. 

Economy  in  arrangement,  whereby  labor  and  material  travel  by  the 
shortest  route  between  shop  and  ship,  is  an  asset  which  means  a  goodly 
percentage  in  profit  as  long  as  the  plant  endures.  A  steel  plate  that  will 
travel  300  yards  from  plate  rack  to  its  place  on  the  ship's  side  in  a  poorly 
arranged  plant  may  travel  only  a  hundred  yards  in  its  course  from  ma- 
chine to  machine  in  a  well-arranged  plant.  The  reduction  in  cost  of 
handling  is  very  appreciable ;  and  if  this  be  applied  to  all  the  multitude 
of  articles  that  go  to  complete  a  modern  ship,  the  difference  in  cost  is 
considerable.  The  same  condition  obtains  with  labor,  which  is  more 
important,  because  more  expensive.  The  shipfitting  and  joiner  shops 
belong  nearest  the  building  slips  and  fitting-out  berths,  so  that  the  class 
of  men  that  fit  and  refit  from  shop  to  ship  will  have  to  walk  the  shortest 
distance ;  for  the  similar  reason  that  the  engine  and  boiler  shops  would  be 


644  AMERICAN  FEDERAL   GOVERNMENT 

at  the  rear,  as  near  the  fitting-out  berths  as  possible,  since  the  engines 
and  boilers  may  be  built  complete  in  the  shops,  and  when  ready  may 
be  hauled  any  distance  by  rail  to  the  fitting-out  berths.  Every  shop  has 
a  logical  location  in  a  shipyard,  yet  no  shop  can  have  its  proper  place 
by  our  methods.  Each  department  seeks  the  main  business  street  as 
centrally  located  as  possible.  Sites  and  shops  are  let  in  a  haphazard 
way,  and,  even  if  determined  by  a  board,  the  most  influential  member 
gets  the  most  central  location.  In  the  navy  yard  of  my  most  intimate 
acquaintance  the  distance  of  the  farthest  buildings  from  the  power 
house  of  one  department  is  so  great  that  the  cost  of  the  electric-power 
wires  is  something  extraordinary;  one  department  is  widely  separated 
into  two  large  halves  by  another  department  lying  between,  and  the 
joiner  shop  is  farthest  away  from  slips  and  berths,  while  the  engine  and 
boiler  shops  are  nearest  the  slips  and  docks,  just  the  reverse  of  where 
they  ought  to  be.  Yet  the  losses  on  first  cost  and  circuitousness  must 
appear  in  the  figures  of  cost  as  long  as  the  plant  exists. 

Another  great  source  of  loss  lies  in  the  lack  of  harmony  that  usually 
exists  between  the  heads  of  departments.  There  are  two  sorts  of  inter- 
department  administration;  one  where  controversy  is  rife,  another 
where  obliging  tact  prevails.  It  may  be  observed  here,  incidentally, 
that  the  one  who  willfully  enters  into  a  squabble  is  a  downright  enemy 
to  economy,  for  when  at  their  best,  heads  of  departments  are  far  enough 
apart  by  the  very  nature  of  things.  One  department  finishes  its  work  to 
where  another  begins,  and  then  endeavors  to  get  the  other  department 
to  supply  the  connecting  link.  The  second  department  may  have  its 
men  on  a  more  pressing  job,  or  may  not  even  have  obtained  funds  for 
the  work  in  hand.  The  delay  in  connecting  may  be  anywhere  from  an 
hour  to  a  month.  Worse  than  that  has  happened.  These  misconnec- 
tions  are  very  frequent,  due  to  the  simple  fact  that  the  various  heads 
of  departments  have  different  trains  of  thought,  and  one  can  not  divine 
what  the  other  intends  to  do  until  the  time  arrives.  The  great  effort  of 
working  ahead  of  time  in  all  the  mass  of  details  is  not  to  be  expected 
from  men  whose  capital  or  income  does  not  bind  them  to  it,  and  whose 
salary  depends  on  the  limits  of  the  single  duties  of  their  own  depart- 
ment as  laid  down  in  the  Navy  regulations.  Unintentional  misconnec- 
tions  between  departments  are  the  source  of  the  greatest  loss  of  time 
and  money  in  the  operation  of  the  plants  as  they  now  stand.  One  de- 
partment owns  a  crane,  a  second  department  is  using  it,  while  a  third 
department  waits  for  it.  The  time  of  making  connections,  getting  per- 
mission, and  waiting  may  keep  a  whole  gang  of  men  out  of  work  for 
some  time.  One  department  builds  a  shop,  the  second  department 
buys  an  elevator  for  it ;  the  original  plans  made  to  fit  are  changed  by 
one  department  without  the  knowledge  of  the  other,  and  the  elevator 
is  found  not  to  suit  the  shaft,  so  the  floor  just  completed  must  be  cut 
out  again. 


ARMY  AND   NAVY  645 

A  load  of  steel  plates  arrives  and  must  be  immediately  removed  by 
one  department  from  the  receiving  station.  This  causes  one  handling. 
Another  department  has  the  list  of  plates,  what  they  are  and  who  they 
are  for,  and  retains  it  sometimes  a  week  or  two.  When  the  list  arrives 
the  third  department  has  to  inspect  them,  one  by  one,  to  examine  the 
inspector's  mark  on  each.  The  first  department  does  not  find  it  con- 
venient to  handle  them  until  the  broken  crane  of  the  fourth  department 
is  mended,  to  avoid  rehandling  them  twice  again.  At  the  end  of  some 
months  the  inspection  is  completed  and  the  contractor  has  lost  several 
months'  interest  on  his  money. 

One  department  buys  a  lot  of  materials  that  it  thinks  the  other  depart- 
ment will  need,  and  owing  to  a  miscalculation  of  the  other  department's 
habits  the  goods  lie  in  store  for  an  indefinite  time.  Two  departments 
disagree  on  a  matter  touching  both.  The  first  one  begins  the  work  and 
the  other  writes  a  letter  to  the  commandant,  who  refers  it  to  the  first 
one  for  his  arguments.  If  the  work  is  important  the  commandant  author- 
izes the  one  he  thinks  is  right,  and  forwards  the  papers  to  the  Assistant 
Secretary  of  the  Navy  for  a  decision  to  guide  in  future  cases.  If  unim- 
portant, the  work  may  await  the  decision.  Sometimes  friction  arises 
between  two  departments ;  they  begin  to  make  caustic  remarks  and  in- 
dorsements to  each  other.  The  clerks,  foremen,  and  workmen  soon 
catch  it,  and  there  is  a  regular  blockade  of  the  interlying  work  between 
the  two.  When  this  happens,  lords  of  old  in  feudal  castles  were  not  in 
more  impregnable  fortresses  than  are  the  two  belligerent  heads.  The 
warf are  is  waged  silently  by  mutual  understanding ;  each  puts  the  other 
out  as  much  as  possible,  and  there  is  no  power  on  earth  to  stop  them 
except  by  mutual  consent.  The  commandant  seldom  has  evidence  of  its 
existence.  If  anything  comes  up  in  correspondence  he  settles  the  point 
at  issue ;  if  one  reports  the  other  verbally  or  by  letter,  the  other  always 
has  a  plausible  reason  to  offer.  It  is  simply  impossible  for  one  to  make 
the  other  come  to  time,  and  reports  are  liable  to  cut  both  ways,  like  a 
two-edged  sword,  and  are  out  of  fashion. 

A  dry  dock  belongs  to  one  department,  also  its  operating  power  plant. 
The  operation  of  it  belongs  to  the  second  department,  and  if  the  engines 
and  boilers  become  old,  dilapidated,  and  uneconomical,  needing  to  be 
repaired  or  replaced,  the  first  department  must  obtain  the  appropria- 
tions and  make  the  repairs,  if  it  approves  the  changes;  its  uninterested 
opinion  governs,  and  in  the  meantime  the  second  department  bears  on 
its  books  the  unwilling  losses  from  uneconomical  operation,  sometimes 
for  a  period  of  years. 

The  most  unnatural  scope  of  bureau  cognizance  is  exemplified  in  the 
modern  floating  dry  dock  which  falls  under  the  bureau  bearing  a  similar 
name,  due  undoubtedly  to  the  circumstance  of  a  name  inherited  from 
the  graving  dock.  The  design  and  building  of  a  floating  dock  belongs 
purely  to  naval  architecture  (and  not  to  civil  engineering) ;  yet  the  Gov- 


646  AMERICAN   FEDERAL   GOVERNMENT 

ernment  fails  to  utilize  its  own  naval  architects  in  such  work,  but  pays 
the  premiums,  going  to  the  naval  architects  of  civil  industry. 


Each  department  is  not  complete  in  itself,  but  may  require  another 
department  to  do  work  it  can  not  perform.  One  having  no  foundry  may 
make  requisition  for  the  one  with  foundry  to  make  its  castings.  The 
first  department  must  furnish  the  materials,  while  the  other  department 
does  the  work  and  transfers  back  the  charges  so  the  labor  may  be  paid 
from  the  appropriations  of  the  department  having  cognizance  of  the 
work.  Thus  the  cost  appears  against  the  first  department,  whereas  it 
really  had  no  hand  in  controlling  the  amount,  which  may  be  exorbitant. 
This  occurs  constantly,  and  it  is  evident  the  total  expense  account  of  a 
department  includes  a  portion  made  outside  of  its  control  and  for  whose 
excess  it  can  not  be  responsible.  Another  feature  is  illustrated  in  the 
effect  of  shifting  cognizance  from  one  department  to  another.  Once 
the  Government  decided  to  economize  by  centralizing  the  lighting  plants 
into  a  single  department.  The  result  was  the  department  that  needed 
light  on  ship  work  was  supplied  with  inadequate  lights,  the  ancient 
practice  of  using  candles  grew  to  an  unnecessary  extent,  and  hundreds 
of  men  have  stood  many  hours  in  the  dark,  glad  at  the  opportunity  for 
a  rest.  The  authority  shifting  the  lighting  from  the  department  that 
controlled  its  cost  and  operation  for  its  own  work  could  not  have  under- 
stood how  its  details  were  going  to  work  out.  With  all  power  plants 
shifted  and  consolidated  under  one  department  as  the  bureaus  are  now 
adjusted,  the  operation  and  cost  of  power  would  be  beyond  the  control 
of  the  department  using  it,  but  the  cost  would  be  charged  against  that 
department,  which  would  be  held  responsible  for  it  notwithstanding, 
since  this  cost  must  have  been  included  in  the  estimates  and  appears 
on  the  books  against  it.  Such  reform  as  that  is  truly  "straining  at  a 
gnat  and  swallowing  a  camel." 

Another  illustration  of  interdepartmental  methods  may  be  shown  by 
the  following  example :  An  appropriation  is  made  to  build  a  ship  and  is 
apportioned  at  Washington  between  the  three  bureaus  producing  the 
hull,  machinery,  and  equipment.  The  department  building  the  hull 
must  be  responsible  for  its  cost.  Incidentally,  the  building  slip  and 
launching  ways  must  be  prepared.  A  fourth  department,  having  no 
allotment,  must  drive  the  piles  by  virtue  of  its  cognizance  as  determined 
in  the  Navy  regulations.  The  hull  department  must  require  the  piles 
to  be  driven  by  the  fourth  department,  and  the  latter  determines  all 
features  included  in  the  cost.  The  pile-driving  department  answers  to 
nobody  for  expense,  being  the  supreme  judge  of  all  matters  touching  its 
technical  duties,  while  the  cost  is  transferred  back  to  the  hull  depart- 
ment, who  must  answer  for  it,  though  having  no  command  over  it.  This 
requires  the  hull  department  to  detail  an  inspector  to  watch  the  pile 


ARMY  AND   NAVY  647 

department  to  determine  whether  the  men  charged  to  the  work  have 
actually  been  present  and  properly  engaged  on  the  work  as  paid  for. 
No  regular  inspectors  having  been  provided  for  such  work,  this  inspection 
is  delegated  to  someone  who  is  most  handy ;  but  only  on  large  work  of 
importance  can  inspection  be  employed,  for  there  is  so  much  small  work 
going  on  of  a  similar  character  that  it  is  impossible  to  anticipate  it  or 
to  check  it  up  after  it  is  done ;  for  in  some  cases  where  such  charges 
have  been  transferred  it  has  been  found  that  men  so  charged  for  a  whole 
day  may  have  been  engaged  on  the  work  only  an  hour,  or  perhaps  a 
few  of  them  may  only  have  handled  some  of  the  material  in  the  shops 
or  may  have  done  nothing  at  all  on  the  work.  This  result  may  be  quite 
unintentional  and  due  to  the  methods  of  preparing  accounts;  but  I 
shall  not  descend  into  those  minutiae.  A  day  never  passes  but  what 
every  department  transfers  accounts  of  work  done  for  the  other  depart- 
ments, and  they  are  of  such  varied  and  irregular  character  that  practi- 
cally no  one  can  be  held  responsible  for  their  correctness,  much  less  for 
the  economy  exercised  in  producing  them.  The  same  is  true  of  work 
within  the  cognizance  of  one  department  which  has  not  the  shops  to  do 
it  with  and  must  request  another  department  to  do  it,  with  the  same 
transferring  of  accounts  and  uncertainty  of  costs. 

Is  this  evidence  enough,  or  shall  other  instances  be  cited?  How 
should  it  be  remedied? 

Shall  the  commandant  be  vested  with  authority  to  violate  the  Navy 
regulations  defining  bureau  cognizance,  or  shall  he  be  permitted  to  vio- 
late the  appropriation  act  and  charge  the  work  to  the  most  convenient 
appropriations,  to  avoid  the  paper  and  other  evils?  If  so,  will  some- 
one venture  to  explain  in  what  features  will  navy-yard  administration 
be  benefited  thereby? 

If  not  that,  then  how  will  a  General  Staff,  composed  of  military  ad- 
ministrators, line  officers  only,  interposed  between  the  present  bureaus 
and  the  Secretary  of  the  Navy,  ameliorate  the  situation  ? 

There  is  no  possible  solution  other  than  consolidation. 

At  the  moment  of  this  writing,  out  of  a  yard  force  of  1,426  workmen 
at  the  yard  I  have  in  mind,  761  of  them  belong  to  the  construction  and 
repair  department  and  665  to  all  other  departments  combined.  At  all 
navy  yards  in  full  operation  the  construction  and  repair  department 
force  is  usually  greater  than  all  the  others  combined,  and  always  has  been. 
The  reason  is  because  navy  yards  exist  principally  for  the  construction 
and  repair  of  ships.  To  consolidate  the  whole  is  not  far  to  go. 

Consolidation  would  cure  also  the  spasmodic  economy  evil :  One  de- 
partment has  no  money  to  do  absolutely  necessary  work,  while  another 
department  can  not  find  enough  work  to  expend  all  its  funds ;  one  can 
obtain  all  the  material  it  needs,  another  has  to  take  what  it  can  get; 
one  can  supply  motors  for  all  its  power  on  shipboard,  another  can  not 
afford  generators  to  give  the  crew  electric  lights;  one  can  supply  ma- 


648  AMERICAN  FEDERAL   GOVERNMENT 

hogany  furniture  for  every  need,  another  can  not  replace  an  article  of 
furniture  that  falls  to  pieces  from  old  age;  one  is  worked  to  the  limit 
of  mental  and  bodily  strain  to  reduce  the  costs,  another  rocks  along 
easily,  waiting  for  the  quitting  bell  to  ring.  One  wastes  what  the  other 
saves. 

One  of  the  most  expensive  luxuries  indulged  in  by  the  Government 
is  a  haphazard  administrator  —  a  merely  accomplished  officer,  whose 
only  necessity  is  to  know  enough  to  keep  out  of  trouble,  and  perhaps, 
after  some  experience,  to  accumulate  enough  data  to  engage  in  a  con- 
troversy. He  is  putty  in  the  hands  of  his  foremen.  A  ship  arrives  to 
be  overhauled.  The  foremen  make  his  estimates  for  him,  and  in  so 
doing  they  determine  the  limits  of  the  estimates.  Shall  this  work  be 
repaired  or  renewed?  The  foreman  says  it  must  be  made  new,  with 
suitable  gestures.  The  foreman's  judgment  usually  governs  the  totals 
of  the  estimates.  One  who  is  not  in  a  position  to  know  better  than  his 
foremen  must  retreat  when  the  latter  present  arguments  which  he  knows 
not  how  to  refute.  Likewise  the  foremen  determine  the  actual  limits 
of  the  work  undertaken,  which  may  overrun  the  estimates.  Foremen 
are  from  among  the  workmen,  who  are  their  friends  and  companions, 
and  it  is  but  natural  to  look  out  for  new  work  and  hold  fast  to  that  in 
hand.  Otherwise  it  means  discharges  for  the  tradesmen,  which  is  not 
a  popular  idea  among  them.  Usually  when  an  old  ship  gets  safely  moored 
alongside  a  navy  yard  for  a  general  overhauling  she  may  bid  farewell 
to  the  world 'until  there  is  other  work  in  sight. 

One  must  know  more  than  his  foremen  and  have  the  will  power  of 
his  convictions  in  order  to  be  able  to  limit  the  work  to  its  proper  amount 
and  cost,  and  he  must  be  very  energetic  and  diplomatic  in  exemplifying 
his  superiority  by  a  vigorous  line  of  action.  When  several  hundred  ex- 
pensive mechanics  are  engaged  on  a  single  ship,  at  a  cost  of  several  hun- 
dred dollars  a  day,  more  money  can  be  sunk  in  shorter  time  than  in 
any  other  way  at  a  navy  yard,  especially  if  the  workmen  are  holding 
on  to  the  job  like  grim  death,  with  no  other  work  in  sight,  with  a  figure- 
head in  charge  of  the  department.  If  the  electric  lights  go  out  and  the 
men  stand  idle  for  an  hour,  that  is  of  little  consequence  where  the  work 
of  repairs  may  be  drawn  out  for  several  months  without  half  trying. 

Recently  the  captain  of  a  ship  forwarded  to  Washington  a  letter  ac- 
companied by  a  sample  copy  of  each  of  the  different  bureaus'  blank 
forms  for  survey,  his  contention  being  that  all  these  forms  should  be 
reduced  to  a  single  one,  applying  to  all  bureaus  alike.  The  stores  be- 
longing to  one  bureau  must  be  included  on  a  separate  form  supplied  by 
that  bureau,  and  the  bureaus'  forms  differ  on  account  of  the  differences 
of  the  methods  and  usages  of  the  bureaus  themselves.  The  consolida- 
tion of  the  bureaus  handling  material  would  reduce  these  forms  to  unity, 
and  thus  ameliorate  a  number  of  kindred  inconveniences. 

Another  evil  which  combination  would  cure  is  to  be  found  in  the 


ARMY  AND   NAVY  649 

prevention  of  improvements  to  shipboard  machinery  where  such  im- 
provement would  transfer  its  cognizance  to  another  bureau.  Thus, 
steam  auxiliaries  have  refused,  at  times,  for  such  a  reason  to  give  way 
to  motors,  long  after  the  auxiliary  steam  engine  stands  discredited 
everywhere  else.  The  limit  of  bureau  cognizance  influences  and  in- 
jures the  design  of  a  ship  in  various  details,  and  stands  in  the  way  of 
many  improvements. 

Likewise,  no  one  may  encompass,  and  be  responsible  for,  the  design 
of  a  ship  as  a  whole.  The  art  of  shipbuilding  is  amply  provided  for 
in  point  of  quality  of  workmanship,  for  where  a  poor  job  of  work  occurs 
the  person  who  did  it  can  always  be  definitely  located ;  but  the  science  of 
shipbuilding  has  no  connecting  link  provided  to  unit  the  interdependent 
functions  governing  the  mobility  of  a  ship.  The  speed,  vibrations,  coal 
consumption,  radius  of  action,  economy  of  power,  water  consumption, 
and  horsepower  of  a  ship  depend  upon  three  separate  and  interrelated 
things,  viz.,  the  model,  the  propeller,  and  the  engines.  On  the  model 
depend  the  speed,  vibrations,  wake  coefficient,  bow  and  stern  waves,  and 
horsepower.  The  functions  of  the  propeller  influence  and  depend  upon 
the  model,  wake  coefficient,  speed,  revolutions,  slip,  vibrations,  depth 
of  water,  coal  and  water  consumption,  radius  of  action,  indicated  horse- 
power, and  economy  of  operation.  On  the  engines  depend  the  speed, 
vibrations,  horsepower,  coal  and  water  consumption,  revolutions,  radius 
of  action,  and  economy  of  operation.  The  bureau  that  designs  the  hull 
has  no  "say"  with  respect  to  the  propeller  and  engines,  and  the  bureau 
that  designs  the  latter  has  no  say  about  the  hull ;  so  that  no  competent 
person  is  provided  for,  or  permitted,  by  the  Government  to  design  these 
three  component  parts,  or  to  adjust  them  to  secure  the  best  results,  or 
to  locate  the  errors  in  the  completed  vessel. 

If  a  new  ship  fails  to  attain  the  desired  speed,  it  may  be  due  to  the 
insufficient  horsepower  or  inefficient  propeller  of  one  bureau,  or  to  the 
lines  of  hull,  foul  bottom,  displacement,  trim,  or  lack  of  depth  of  water 
at  trial  of  another  bureau's  consideration.  If  there  are  excessive  vibra- 
tions it  may  be  due  to  an  unbalanced  engine,  an  improperly  designed 
propeller,  or  a  wrong  location  of  the  engines  with  respect  to  the  hull's 
nodes  of  vibration  of  one  bureau's  cognizance.  If  the  vessel  is  uneco- 
nomical and  has  a  large  coal  and  water  consumption  and  a  small  radius 
of  action,  it  may  be  due  to  a  foul  bottom,  wrong  propeller,  excessive 
steam  consumption  of  engines,  or  inefficient  boilers.  There  is  no  one 
in  a  position  to  locate  the  fault  and  denote  whether  it  belong  to  one 
bureau  or  the  other,  nor  is  anyone  in  a  position  to  profit  by  the  experi- 
ence and  correct  future  designs.  There  is  greater  reason  to  combine 
the  design  of  the  whole  ship  under  one  head  than  to  combine  the  two 
departments  building  it.  A  ship  is  too  small  to  separate  its  design  or 
its  building  under  any  but  one  head.  It  may  have  been  necessary  forty- 
two  years  ago  when  the  shipwright  knew  nothing  of  steam  or  electricity 


650  AMERICAN  FEDERAL   GOVERNMENT 

and  the  separate  professions  had  to  be  employed  to  obtain  the  whole, 
but  at  this  epoch  when  a  war  ship  has  merged  into  a  machinery  plant 
where  hull,  engines,  boilers,  dynamos,  and  all  the  other  fittings  are 
formed  into  shape  by  the  same  or  similar  machinery  from  iron,  steel, 
brass,  and  copper  by  the  same  class  of  mechanics,  there  no  longer  re- 
mains an  excuse  for  unnatural  subdivisions  descended  from  the  olden 
times.  The  whole  field  of  the  shipbuilding  profession  to-day  is  not  more 
than  a  specialized  branch  of  mechanical  engineering  —  steam  engines, 
boilers,  electricity,  and  naval  architecture.  Not  even  so  diversified  as 
the  mechanical  engineering  of  commerce,  which  encompasses  the  broad 
field  covered  by  the  great  variety  and  differences  in  machinery,  plants, 
and  methods  employed  in  the  private  industries  of  the  country,  but 
merely  the  comparatively  narrow  field  of  mechanical  engineering  ap- 
plying to  a  shipyard  plant  only,  and  the  architecture  of  naval  vessels 
and  machinery  only;  merely  the  same  profession  now  covered  by  the 
curriculum  of  a  single  school  and  encompassed  by  a  single  diploma. 
There  is  no  real  barrier  to  the  achievement  of  modern  methods  in  our 
tape-ridden  navy  yards. 


XII 
THE   AMERICAN   FOREIGN   SERVICE 

[The  growth  of  the  national  interest  on  the  part  of  the  United  States  in 
Foreign  affairs  has  been  accompanied  with  a  desire  to  improve  our  foreign 
service  especially  by  making  the  consular  and  diplomatic  service  a  more  satis- 
factory and  continuous  career.  This  policy  is  discussed  by  Mr.  Huntington 
Wilson,  now  third  assistant  secretary  of  state,  and  in  the  discussions  between 
Mr.  Root  and  certain  senators  in  a  committee  hearing.  The  article  by  Judge 
Francis  C.  Lowell  upon  American  diplomacy  brings  out  the  advantage  which 
the  United  States  has  derived  through  being  represented  in  foreign  affairs  by 
men  who,  while  they  had  not  passed  through  a  continuous  diplomatic  career, 
were  representative  of  their  country  in  the  sense  of  being  personages  of  na- 
tional reputation  and  importance.] 

THE   AMERICAN   FOREIGN   SERVICE1 

BY  HUNTINGTON  WILSON  2 

THERE  is  evident  a  growing  sentiment  among  Americans  in  favor  of 
reorganizing  and  improving  the  foreign  service,  diplomatic  and  consular, 
and  placing  it  upon  a  stable  basis.  Indeed,  this  feeling  has  become  so 
general  and  so  strong  that  but  for  our  extreme  conservatism  something 
would  have  been  done  in  that  direction  before  the  present  time. 

The  diplomatic  service  is  the  machinery  by  which  the  relations  of  our 
Government  with  other  Governments  are  carried  on.  It  is  the  spokes- 
man of  our  policies  in  the  council  of  the  nations;  the  channel  through 
which  flows  peace  or  war.  It  is  the  eyes  and  ears  of  our  Government 
in  our  foreign  affairs ;  and  it  is  the  every-day  means  of  attending  to  our 
rights  and  obligations  towards  other  Governments  and  peoples.  A 
hermit  nation  needs  no  diplomacy;  but  once  a  nation  abandons  isola- 
tion, the  efficiency  of  its  diplomacy  is  a  matter  of  serious  concern  to 
every  citizen. 

The  consular  service  is  the  machinery  for  carrying  on,  improving, 
and  increasing  foreign  commerce.  First,  there  is  an  enormous  amount 
of  routine  business.  For  all  goods  imported  into  the  United  States 
invoices  must  be  authenticated  at  our  consulates  at  the  ports  of  export 
or  places  of  original  shipment.  Consulates  are  the  custodians  of  the 

1  From  the  Outlook,  March  3,  1906.    Reprinted  by  permission. 

2  Secretary  of  Legation  of  the  United  States  at  Tokyo. 

651 


652  AMERICAN   FEDERAL   GOVERNMENT 

ship's  papers  of  American  vessels  while  at  ports  within  their  districts. 
They  discharge  sailors,  assist  destitute  or  sick  seamen,  adjust  difficulties 
between  ship's  captains  and  their  crews,  and  generally  extend  the  con- 
trol of  the  home  Government  over  the  merchant  marine  in  foreign 
ports.  Marriages  of  Americans  in  foreign  countries  must  be  witnessed 
by  the  Consul.  Deceased  Americans'  estates  in  foreign  lands  are,  to  a 
degree  varying  in  different  countries,  under  consular  protection.  Deeds, 
powers  of  attorney,  protests,  affidavits,  patent  applications,  and  other 
instruments  executed  abroad  to  be  effective  in  the  United  States,  are 
attested  at  the  consulates.  Such  are  the  ordinary  administrative  and 
notarial  consular  duties.  In  those  countries  where  extraterritoriality  is 
in  force  the  consular  officers  exercise  a  much  wider  administrative  func- 
tion. There  the  American  Consular  Court  is  the  only  forum  in  which 
an  American  can  be  pursued  by  civil  or  criminal  law. 

After  giving  some  idea  of  the  variety  and  responsibility  of  the  consular 
function,  we  come  to  what  is  to-day  the  all-important  object  of  that  ser- 
vice. That  is,  the  extension  and  increase  of  American  business  by  open- 
ing up,  widening,  and  developing  fields  for  our  export  trade.  A  consular 
district  generally  comprises  all  that  part  of  the  country  in  which  a  given 
consulate  is  situated  which  is  nearer  to  it  than  to  any  other  American 
consulate.  It  is  the  duty  of  the  consul  to  make  a  deep  and  special  study 
of  the  industrial  and  mercantile  conditions  existing  in  his  district.  He 
must  know  what  the  country  needs  or  would  take  in  raw  materials,  in 
commodities,  and  in  manufactured  articles.  He  should  learn  how  these 
needs  are  being  supplied,  with  particular  attention  to  those  of  them  which 
the  American  producer  —  farmer,  miner,  manufacturer,  or  merchant  — 
might  supply.  He  should  investigate  and  report  as  to  whether  the 
American  import  could  not,  by  a  change  in  form  or  a  variation  in 
manufacture,  by  a  different  method  of  packing,  by  more  convenient 
accommodation  in  payment,  or  in  any  other  way,  be  brought  into  greater 
demand  and  American  trade  be  thus  increased. 

Each  consular  district  may  reveal  a  peculiar  phase  of  the  general  im- 
port possibilities  of  a  country.  Hence,  general  reports  are  made  by  an 
official  who  looks  over  the  field  as  a  whole.  These  reports  are  made  at 
consulates-general,  and  sometimes  also  at  embassies  and  legations.  Of 
course  the  capital  of  a  country  affords  the  best  facilities  for  obtaining 
from  official  sources  information  bearing  on  trade.  Also,  in  some  coun- 
tries government  contracts  are  an  important  item  in  the  competition  for 
import  orders.  Therefore  it  may  be  wise  for  us,  as  some  European 
Governments  have  done,  to  appoint  commercial  attaches  to  some  of 
our  embassies  and  legations. 

Our  consular  service,  then,  exists  to  facilitate  and  promote  the  material 
and  personal  interests  of  the  American  people  in  foreign  countries.  Our 
diplomatic  service  adds  a  care  for  these  same  interests  to  its  duty  to  pro- 
tect and  further  America's  political  interests  in  the  world. 


THE  AMERICAN   FOREIGN   SERVICE  653 

The  Department  of  State  is  charged  with  the  duty  of  making  the  diplo- 
matic and  consular  services  of  the  greatest  possible  use  to  the  Govern- 
ment and  people.  It  is  not  generally  realized  how  large  a  number  of 
officers  the  State  Department  has  under  it  in  the  service  abroad,  nor  how 
vast  and  varied  is  the  volume  of  its  business.  It  has  a  personnel  smaller 
and  more  poorly  paid  than  that  of  the  Foreign  Office  of  Great  Britain; 
but,  besides  being  the  American  Foreign  Office,  it  has  a  number  of  other 
duties  superadded.  The  Secretary  of  State  is  keeper  of  the  seal  of  the 
United  States.  He  publishes  the  Federal  laws  of  the  land.  Contentious 
matters  between  foreigners  and  the  State  sovereignties  of  the  Union  at 
times  give  rise  to  questions  between  those  governments  and  the  govern- 
ments of  foreign  countries.  All  these  have  to  be  settled  by  elaborate 
domestic  correspondence  between  the  State  Department  and  the  Gov- 
ernors of  our  States,  other  departments,  and  various  officials.  So  that 
functions  corresponding  in  other  countries  to  such  offices  as  Keeper 
of  the  Seal,  Chancellor  of  the  Empire,  etc.,  devolve  upon  the  one  Depart- 
ment. What  with  our  new  colonial  possessions,  it  seems  likely  that  the 
scope  of  the  State  Department's  work  may  before  long  be  still  further 
extended.  Yet  the  Department  of  State  has  a  very  small  personnel  and 
very  small  appropriations.  The  wonder  is  how  its  handful  of  officials 
acquit  themselves  so  well  in  grappling  with  so  enormous  a  volume  of 
business.  Certainly  high  praise  is  due  them. 

The  fact  is  that  all  three  components  of  the  foreign  service,  that  is, 
the  Department  of  State  and  the  diplomatic  and  consular  services  under 
it,  were  founded  long  ago  on  a  small  scale,  just  after  our  emergence  from 
colonial  days.  They  can  never  catch  up  with  the  country's  present  needs 
unless  the  will  of  the  people  express  itself  through  Congress  in  the  form 
of  the  required  legislation,  and  Congress  take  a  deeper  interest  in  the 
work  of  the  foreign  service. 

This  brings  me  to  one  of  the  most  distressing  difficulties  of  our  system. 
I  refer  to  the  lack  of  any  constituted  channel  of  communication  for  keep- 
ing Congress  and  the  foreign  service  in  sympathetic  touch  and  effective 
cooperation.  In  other  countries  this  undoubted  need  is  supplied  by  a 
parliamentary  secretary ;  or  the  Minister  for  Foreign  Affairs  speaks  on 
the  floor  of  the  House.  With  us  there  are  the  President's  occasional 
messages.  Congress  sometimes  calls  for  correspondence  when  some 
question  has  become  acute.  Or,  suppose  a  Senator  or  a  Representative 
or  an  official  of  the  State  Department  to  be  greatly  interested  in  a  piece 
of  legislation  touching  foreign  affairs,  or  in  a  treaty  to  be  negotiated; 
he  may  by  personal  effort  have  a  number  of  conversations  which  will 
greatly  help  both  the  Senate  or  Congress  and  the  Department.  But 
there  is  no  sufficiently  continuous  keeping  in  touch  between  the  Senate, 
the  House,  their  committees,  and  the  State  Department ;  and  the  matter 
is  too  important  not  to  be  thoroughly  provided  for.  Why  should  not  an 
Assistant  Secretary  of  State  be  charged  with  this  duty? 


654  AMERICAN   FEDERAL   GOVERNMENT 

Because  of  the  heterogeneity  of  its  business  and  the  numerical  inade- 
quacy of  its  personnel;  the  State  Department  has  been  irreverently  com- 
pared to  the  former  Chinese  Tsungli-Yamen.  Our  diplomatic  and 
consular  services  have  been,  with  less  irreverence  and  more  truth,  called 
the  "  catch-as-catch-can  system."  There  is  enough  truth  in  this  pessi- 
mism to  suggest  that  there  is  much  room  for  improvement,  and  that  the 
time  is  ripe  and  the  way  open  for  framing  and  putting  into  operation 
an  ideal  foreign  service. 

The  Department  needs  a  larger  personnel  to  do  its  great  intellectual 
work,  and  a  more  logical  division  of  work.  At  present,  in  the  Diplo- 
matic Bureau  the  countries  of  the  earth  are  apportioned  for  working 
purposes  alphabetically.  .Yet  it  cannot  be  said  that  a  knowledge  of 
Cuba  and  Costa  Rica  is  particularly  useful  to  the  men  who  must  study 
the  intricacies  of  Chinese  policy.  The  Diplomatic  Bureau  should  be 
divided  into  sections  on  some  politico-geographical  basis  of  reason. 
Several  new  bureaus  and  sections  should  be  added.  And,  as  said  before, 
some  official  should  be  charged  with  keeping  the  Department  in  touch 
with  the  whole  Congress  on  legislation  respecting  foreign  affairs,  and 
with  the  Senate  on  treaty  matters. 

The  reform  of  first  necessity  is  the  extinction  of  the  " spoils  system" 
in  filling  offices  in  the  foreign  service.  Here  civil  service  is  absolutely 
indispensable ;  but  the  application  of  it  requires  very  careful  working  out. 

Inefficiency  in  the  foreign  service  may  be  divided,  according  to  cause, 
into  two  classes.  The  first  is  inefficiency  due  to  lack  of  natural  qualifi- 
cations, to  inadequate  professional  education,  and  to  want  of  experience. 
These  are  the  vices  of  our  unsystematized  service.  The  zeal  of  a  man 
trying  to  do  a  difficult  thing  quite  new  to  him  is  sometimes  its  saving 
grace.  The  second  is  inefficiency  arising  from  apathy  and  indifference. 
This  is  the  vice  of  a  thoroughgoing,  closed  civil  service.  Our  problem  is 
how  to  get  the  natural  qualifications,  the  special  education,  and  the  ex- 
perience, and  at  the  same  time  to  inspire  zeal  in  the  service. 

Examinations  will  insure  the  special  knowledge,  a  permanent  service 
will  supply  the  experience,  promotion  for  meritorious  work  will  secure 
the  zeal.  How  are  we  to  obtain  the  best  men?  Every  college  man 
knows  that  the  men  who  pass  the  highest  examinations  are  by  no  means 
always  the  ablest  men  in  the  class.  Especially  in  diplomacy,  a  number 
of  very  intangible  qualities  are  wanted.  Tact,  address,  quick  perception, 
an  analytical  mind,  balance,  and  self-control  are  some  of  the  natural 
qualities  a  good  diplomatist  has.  These  should  therefore  be  sought  in 
the  young  candidates  for  the  service,  and  obviously  they  can  not  be  de- 
tected by  a  written  examination. 

A  famous  Russian  Minister  for  Foreign  Affairs  emphasized  the  indu- 
bitable importance  of  this  personal  element.  It  was  his  custom  to  have 
all  the  candidates  who  had  successfully  passed  the  diplomatic  service 
examination  call  upon  him  next  day.  He  then  selected  from  among 


THE  AMERICAN   FOREIGN   SERVICE  655 

them  the  candidates  to  put  into  the  service;  and  he  is  recorded  as  say- 
ing that  his  decision  was  based  rather  upon  the  impression  each  candi- 
date personally  made  on  him  during  the  call  than  upon  the  relative 
merits  of  their  examination  papers. 

Why  should  not  the  Secretary  of  State,  perhaps  assisted  by  a  small 
board,  select  from  among  the  successful  candidates  those  to  be  put  into 
the  service  after  the  examinations  each  year  —  the  choice  to  be  made  after 
an  informal  and  verbal  examination  of  the  men  who  had  successfully 
passed  the  main  written  one? 

•  Now  that  the  days  of  the  telegraph  have  made  the  envoy  rather  his 
Government's  spokesman  and  advocate  than  its  plenipotentiary  states- 
man, some  people  too  greatly  minimize  his  duties.  Surely  it  behooves  us, 
as  a  practical  people,  to  have  for  our  Government  the  best  possible 
spokesmen  and  advocates.  In  private  life  his  personal  abilities  leave 
one  advocate  in  the  law  to  starve,  while  another's  bring  him  a  huge 
income.  Success  or  failure  in  the  Government's  foreign  affairs  depends 
enormously  —  much  more  than  people  realize  —  upon  the  skill  or  the 
bungling  of  the  Government's  advocates  abroad.  And  these  are  its 
diplomatic  representatives. 

For  efficiency  in  a  consular  officer  the  personal  factor  presents  some- 
what fewer  difficulties,  yet  it  is  questionable  whether  an  examination 
should  be  the  sole  criterion  for  the  admission  of  men  eligible  to  all  grades. 
Although  the  two  services  have  a  number  of  things  in  common,  and  what 
is  true  of  the  one  is  often  to  some  extent  true  of  the  other,  what  next 
follows  applies  particularly  to  the  diplomatic  branch. 

A  charge  which  may  be  brought  against  an  organized  foreign  service 
in  which  men  spend  their  lives,  except  for  occasional  leaves  of  absence  in 
going  from  post  to  post  in  foreign  countries,  is  that  they  sometimes  lose 
touch  with  the  ideas  of  their  own  country.  They  are  too  long  away  from 
home.  There  is,  however,  a  ready  means  of  removing  this  danger. 

The  successful  candidates  for  the  service  should  first  pass  a  year  or 
more  as  clerks  in  the  State  Department,  learning,  from  the  big  end, 
the  practical  work  of  their  profession.  These  young  men  would  be 
distributed  in  the  bureaus  and  sections  where  the  work  would  teach 
them  most  about  their  future  duties,  whether  consular  or  diplomatic, 
and  would  be  required  to  familiarize  themselves  with  the  general  work 
of  the  Department. 

Next,  these  clerks  would  be  sent  abroad  to  serve  as  attaches  at  embas- 
sies or  legations,  or  as  clerks  in  consulates,  this  depending  upon  which 
service  they  had  been  examined  for  and  entered.  Later,  they  would  be 
transferred  from  one  post  to  another,  and,  if  they  did  good  work,  gradu- 
ally promoted.  In  their  respective  services  they  would  become  third 
secretaries  of  embassy  or  legation,  second  secretaries,  secretaries,  and 
so  on;  and,  in  the  consular  service,  higher  grades  of  clerks,  consular 
agents,  vice  and  deputy  consuls,  consuls,  consuls-general. 


656  AMERICAN   FEDERAL  'GOVERNMENT 

In  connection  with  the  regular  diplomatic  and  consular  service  exami- 
nations there  should  be  examinations  for  positions  as  student  interpreters. 
A  few  years  ago  student  interpreters  were  attached  to  our  legation  at 
Peking,  and  that  was  an  admirable  innovation.  It  should  be  extended, 
however,  at  least  to  our  legation  in  Japan,  and  perhaps  also  to  that  in 
Turkey.  The  written  language  is  practically  the  same  in  China,  Japan, 
and  Korea.  These  student  interpreters,  after  an  apprenticeship  in  the 
State  Department,  would  be  sent  out  and  attached  to  the  legations  in 
the  Far  East.  There  they  would  spend  several  years  in  mastering  the 
difficulties  of  the  Oriental  languages.  After  that  they  would  be  pre- 
pared to  join  the  staffs  of  the  consulates  in  China,  Japan,  and  Korea 
as  clerks,  and  so  enter  on  a  career  in  the  Oriental  consular  service.  The 
interpreters  of  our  legations  and  their  assistants  would  also  be  drawn 
from  this  body. 

Now  we  come  to  the  above-mentioned  safeguard  against  a  tendency 
to  what  may  be  loosely  called  expatriation.  The  plan  which  follows 
is  most  of  all  desirable  because  of  the  great  benefits  it  carries  with  it. 

It  is  difficult  to  gainsay  that  a  man  can  do  better  work  in  the  service 
abroad  if  he  has  first  served  in  the  Department  at  Washington.  It  also 
seems  evident  that  it  would  be  useful  to  have  in  the  Department  men 
who  had  made  recent  special  studies  of  the  political  and  trade  conditions 
in  various  foreign  countries.  The  suggestion,  then,  is  that  a  mobility 
and  interchange  of  posts  be  established,  to  a  certain  extent,  between  the 
Department  of  State  and  the  diplomatic  service,  and  perhaps  also,  in 
certain  bureaus  and  sections,  between  the  Department  and  the  consular 
service.  A  parity  of  grade  could  be  fixed  between  the  posts  in  the  De- 
partment and  the  posts  abroad.  For  example,  the  different  grades  of 
clerks,  the  chiefs  of  section,  the  chiefs  of  bureau,  and  the  assistant  secre- 
taries might  correspond  to  attaches,  to  grades  of  secretaries  of  embassy 
or  legation,  to  ministers  resident,  and  to  ministers  plenipotentiary.  A 
limited  shifting  between  the  two  ends  of  the  service  could  be  ordered 
from  time  to  time  by  the  Secretary  of  State.  Among  other  things,  this 
system  would  give  to  the  heads  of  the  service  a  more  intimate  knowl- 
edge of  the  abilities  of  their  personnel ;  and  it  is  safe  to  say  that  in  the 
long  run  it  would  be  of  great  use  to  the  Department  and  benefit  to  the 
diplomatic  service. 

Fairly  frequent  shifting  between  posts  abroad  is  also  desirable,  and 
transfers  should  as  far  as  possible  invariably  accompany  promotions. 
For  considerations  which,  if  somewhat  abstruse,  are  none  the  less  cogent, 
it  is  best  that  a  secretary  should  be  transferred  when  promoted  rather 
than  be  promoted  to  be  minister  at  the  same  post.  The  two  official 
characters  of  minister  and  secretary,  and  the  subtle  relations  attaching 
to  them,  are  different.  Each  position  occupies  a  certain  place  in  the 
mind  of  the  local  official  circle ;  and  these  associations  are  not  to  be  sud- 
denly thrown  off  or  assumed.  An  important  reason  why  three  or  four 


THE  AMERICAN   FOREIGN   SERVICE  657 

years  is  generally  long  enough  to  leave  a  man  at  the  same  post  is  that  he 
almost  inevitably  becomes  somewhat  "stale."  His  observation  becomes 
less  keen.  Also,  at  difficult  posts  an  energetic  representative  is  not 
unlikely  to  wear  out  his  welcome,  and  so  lose  much  of  his  usefulness. 
Furthermore,  frequent  transfer  gives  wider  experience  and  so  increases 
efficiency.  With  this  system  each  official  would  be  commissioned  by 
the  President  in  a  particular  grade,  and  the  Secretary  of  State  would 
designate,  from  time  to  time,  the  post  he  should  fill.  From  every  point 
of  view,  a  more  mobile  diplomatic  service,  including  limited  inter- 
change to  the  State  Department,  has  much  to  recommend  it. 

A  closed  service,  in  which  a  man  has  only  to  live  in  order  to  be  steadily 
promoted  and  finally  retired  with  a  pension,  tends  to  induce  apathy. 
What  we  want  is  a  service  in  which  every  man  who  gives  his  best  years 
and  energies  to  the  work  will  be  sure  of  a  life  career,  and,  at  the  end  of 
his  career,  a  pension.  Only  those  who  do  signally  fine  work  should 
expect  to  be  rewarded  with  ultimate  promotion  to  the  highest  grades. 
In  this  way  justice  is  meted  to  faithful  service  and  a  reward  is  in  store 
for  brilliant  service. 

The  best  pension  system  would  probably  be  to  make  retirement  op- 
tional after,  say,  twenty-five  years'  service,  with  a  pension  computed  on 
the  salary  of  the  grade  from  which  the  officer  retired.  The  pension  could 
be  increased  proportionally  to  the  excess  of  the  period  of  service  rendered 
over  twenty-five  years.  In  private  life  it  is  deemed  a  hard  lot  when  a 
man  who  has  given  the  best  twenty-five  or  thirty  years  of  his  life  to  a 
business  or  profession  can  not  have  accumulated  enough  to  support  him 
during  his  declining  years.  And  if  the  foreign  service  is  to  have  the  good 
men  it  needs,  their  livelihood  must  not  be  made  too  precarious. 

Nor  would  it  be  necessary  to  have  an  absolutely  closed  service.  There 
is  every  reason  why,  with  an  organized  service,  the  President  should  still 
have  the  power  to  appoint  an  ambassador  or  minister  from  outside  the 
diplomatic  service.  The  preeminent  talents  and  conspicuous  fitness  of 
some  countryman  of  ours,  or  the  special  nature  of  some  mission  to  be 
carried  out,  may  at  times  point  unmistakably  to  such  a  selection. 

Our  ambassadors  and  ministers  receive  relatively  small  pay  and  no 
allowances  worth  mentioning,  and  are  not  provided  with  houses.  Their 
colleagues  representing  other  Powers  receive  generally  better  pay,  be- 
sides funds  for  the  costly  and  necessary  outlays  for  "  representation," 
and  permanent  buildings  owned  by  their  governments,  in  which  to 
reside  during  their  missions.  Every  truly  democratic  American  should 
be  shocked  to  realize  that,  because  of  our  penury  in  this  matter,  only 
very  rich  men  can  possibly  uphold  the  dignity  of  the  United  States  at 
certain  capitals.  The  very  undemocratic  result  is  that  men  of  moderate 
fortune,  however  talented,  can  not  be  appointed  to,  nor  could  they  afford 
to  accept,  those  posts. 

American  travelers  are  constantly  chagrined  to  find  their  legations  and 

42 


658  AMERICAN   FEDERAL   GOVERNMENT 

consulates  abroad  housed  in  a  haphazard  manner,  comparing  very  un- 
favorably with  those  of  other  countries.  Our  Government  owns  legation 
buildings  only  at  Tokyo,  Peking,  Seoul,  and  Bangkok.  The  owner- 
ship of  these  was  practically  forced  upon  us  by  the  peculiar  conditions 
existing  in  those  countries.  Similarly,  we  possess  a  few  rather  inferior 
consular  premises.  Let  us  see  what  other  countries  do  —  countries 
which  place  importance  on  foreign  policy  and  its  corollary,  foreign  com- 
merce, as,  for  example,  Germany  and  Great  Britain.  In  every  capital, 
in  every  port  or  commercial  center,  they  aim  to  have  the  eye  met  by  an 
embassy  or  legation  or  a  consulate  —  substantial,  permanent,  and  archi- 
tecturally good  —  which  stands  in  a  foreign  land  as  a  reminder  of  the 
dignity,  the  strength,  and  the  enterprise  of  the  country  whose  flag  flies 
over  it.  And  then  one  finds  (if,  indeed,  one  can  succeed  in  finding  them) 
the  American  embassy  or  legation,  shabby  or  creditable,  according  to 
the  purse  and  generosity  of  the  representative,  and  the  consulate  some- 
times a  dusty  second  floor  in  some  back  street.  Is  this  what  the  American 
people  want? 

I  have  outlined  a  number  of  points  for  a  reorganization  which  I 
believe  would  be  entirely  practical  and  feasible,  and  would  vastly  amelio- 
rate the  service.  There  are  many  minor  reforms  which  can  hardly  be 
taken  up  with  any  enthusiasm  while  the  service  is  left  in  its  present 
unsettled  condition. 

A  number  of  Senators  and  Representatives  have  done  hard  work  and 
have  introduced  bills  which  it  was  hoped  would  place  the  service  on  a 
sound  footing.  But  the  ideal  foreign  service  for  which  the  way  is  now 
open  needs  for  its  accomplishment  the  support  of  an  active,  not  passive, 
public  opinion ;  and  it  needs  the  cooperation  of  the  Senators  and  Rep- 
resentatives interested  with  the  President  and  the  Secretary  of  State, 
and  with  some  of  those  who  have  studied  the  service  from  within.  The 
foreign  services  of  all  countries  must  be  studied  and  examined.  What 
is  good  must  be  adopted,  or  what  is  better  must  be  devised.  Then  will  a 
bill  be  framed  and  passed  which  will  give  us  the  efficient  foreign  service 
that  a  great  commercial  world  power  like  the  United  States  has  the  right 
and  the  obligation  to  possess. 


FROM  A  SENATE  HEARING  ON  THE  REORGANIZA- 
TION  OF   CONSULAR  SERVICE,    1906  l 

SECRETARY  ROOT.  The  scheme  of  reorganization  which  is  embodied 
in  the  first  n  sections  of  the  bill  includes,  first,  the  classification  of  the 
consular  officers  in  grade,  the  assignment  of  the  members  of  the  present 
force  to  those  grades  in  accordance  with  their  present  positions,  the 

1  Senate  Report  No.  112,  59th  Congr.,  i  Session. 


THE  AMERICAN   FOREIGN   SERVICE  659 

importance,  the  salary,  and  the  existing  conditions  of  their  present 
offices,  and  authority  to  the  President  to  transfer  these  graded  officers 
from  one  station  to  another  according  to  the  interests  of  the  service. 

Senator  BACON.  The  promotion  then  requires  a  separate  confir- 
mation ? 

Secretary  ROOT.  Yes;  it  provides  for  original  appointments  only  to 
the  lower  grades  upon  examination.  An  examination  would  be  by  a 
board  composed  of  the  Chief  of  the  Consular  Bureau,  an  officer  of  the 
State  Department  designated  by  the  President,  and  the  chief  examiner 
of  the  Civil  Service  Commission  or  other  person  designated  by  the  Com- 
mission —  practically  such  examiner  as  they  designate. 

Senator  LODGE.    The  examination  is  not  competitive. 
•    Secretary  ROOT.     No;    the  examination  is  to  be  of  such  persons  as 
the  President  designates  for  examination. 

Senator  LODGE.    Like  the  Marine  Corps  to-day? 

Secretary  ROOT.  Yes,  and  the  Army ;  the  board  to  accompany  their 
report  of  the  list  of  those  who  pass  the  examination  with  a  detailed  state- 
ment of  the  reasons  for  their  report  and  of  the  qualifications  shown  by 
the  examination.  The  reorganization  contemplates  that  the  appoint- 
ments made  to  the  higher  grades  shall  be  by  promotion  —  that  is  to  say, 
the  original  appointments  to  be  only  to  the  lower  grade,  and  the  appoint- 
ments to  the  higher  grades  to  be  by  promotion  from  the  lower  grade. 

Senator  BACON.  Pardon  an  inquiry  right  there,  Mr.  Secretary.  In 
section  2  you  speak  of  the  number  of  consuls-general  of  the  first  class, 
then  consuls-general  of  the  second  class,  etc.  Do  I  understand  that 
there  can  be  no  original  appointments  to  those  positions? 

Secretary  ROOT.    No;  it  is  all  by  promotion. 

Senator  MORGAN.    Based  upon  examination? 

Secretary  ROOT.  No ;  the  promotion  is  not  based  upon  examination. 
The  original  appointment  is  based  upon  examination.  The  promotion 
is  based  upon  what  the  man  does  in  the  service.  We  have  already 
started  in  the  State  Department  an  efficiency  record,  under  which  there 
will  be  entered,  under  the  name  of  every  officer  in  the  consular  service,  all 
the  information  that  can  be  now  collected  as  to  what  sort  of  an  officer  he 
is.  I  have  called  upon  the  Department  of  Commerce  and  Labor  to  inform 
me  what  their  estimate  is  upon  the  reports  that  are  sent  in  by  the  consuls 
and  are  sent  over  to  the  Department  to  be  published.  I  have  called 
upon  the  Bureau  of  Trade  Relations  in  the  State  Department  for  the 
same  information,  upon  the  Consular  Bureau  for  the  same  information, 
and  I  am  searching  the  records  of  the  State  Department  to  get  information 
as  to  whether  a  man  is  a  good  man,  an  indifferent  man,  or  a  poor  man. 
Then  I  have  given  directions  that  hereafter  every  specially  good  thing 
that  a  consul  does  shall  be  entered  to  his  credit,  and  every  poor  thing 
that  he  does  shall  be  entered  to  his  discredit. 

Senator  MORGAN.    Like  a  military  record? 


66o  AMERICAN  FEDERAL   GOVERNMENT 

Secretary  ROOT.  Yes.  I  am  practically  applying  experience  that  I 
gained  in  the  War  Department  in  regard  to  the  efficiency  records  of 
officers. 

The  two  things  to  be  gained  by  the  classification  and  confining  the 
appointments  to  a  lower  grade  and  filling  the  upper  ones  by  promotion 
are,  first,  that  it  will  enable  the  President  to  assign  the  officers  to  stations 
in  accordance  with  the  interests  of  the  service.  We  have  now  a  great 
many  square  pegs  in  round  holes  and  round  pegs  in  square  holes.  There 
are  men  in  the  service  whose  health  is  suffering  and  whose  families' 
health  is  suffering,  and  they  are  holding  on  because  there  is  no  way  to 
get  out  except  to  leave  the  service.  There  are  men  in  places  for  which 
their  peculiar  faculties  are  not  fitted,  but  they  are  holding  on  instead  of 
being  put  in  places  where  they  could  do  far  better  work,  because  there 
is  no  way  of  remedying  that  situation  except  for  them  to  get  out  of  the 
service  or  turn  somebody  else  out  and  reappoint  them.  I  can  not  see 
any  reason  why  they  should  not  be  assigned  as  the  service  requires,  just 
as  an  army  officer  is  assigned. 

Senator  MORGAN.    Anywhere  in  the  world? 

Secretary  ROOT.  Anywhere.  There  is  one  man  now,  a  gentleman 
Senator  Cullom  spoke  to  me  about  some  time  ago,  who  is  consul  in 
China,  a  most  excellent  man.  I  do  not  believe  he  is  going  to  be  able  to 
stay  at  the  place  where  he  is.  I  think  considerations  of  health  will 
make  it  impossible.  He  has  to  go  out  of  the  service  unless  somebody 
else  is  turned  out  who  perhaps  ought  not  to  be  turned  out,  and  this 
gentleman's  name  sent  to  the  Senate  upon  an  entirely  new  original 
appointment  for  another  place.  It  is  very  difficult  to  find  such  a  place, 
too,  because  you  have  either  got  to  punish  him  because  his  health  and 
his  family's  health  will  not  stand  the  place  where  he  is,  by  putting  him 
in  a  place  with  a  lower  salary,  or  reward  him  for  it,  by  putting  him  in 
a  place  with  a  higher  salary,  unless  you  can  find  one  with  just  the  same 
salary.  There  are  many  men  who  could  do  much  better  work  in  much 
better  places,  and  we  can  not  move  them. 

Senator  BACON.  The  question  as  to  the  advisability  of  introducing 
this  elastic  feature  into  the  service  is  somewhat  different  from  the  ques- 
tion which  arises  upon  this  classification  in  the  matter  of  promotions. 

Secretary  ROOT.  I  was  coming  to  that.  That  is  the  second  advantage 
to  be  gained  by  classification,  that  it  makes  possible  the  filling  of  higher 
grades  by  promotion  and  confining  the  appointments  to  the  lower  grades. 
Now,  it  is  not  possible  to  have  the  best  service  from  men  who  are  hopeless 
of  receiving  any  recognition  of  the  best  service.  It  is  a  fact  that  now  it 
makes  very  little  difference  whether  a  consul  does  well  or  ill.  He  may 
be  in  a  lower  station,  doing  the  highest  kind  of  work,  and  a  vacancy 
may  occur  in  a  better  place  in  the  very  country  where  he  is,  and  he  ex- 
pects nothing  else  but  that  somebody  from  home  here  will  be  shoved 
in  over  his  head.  He  is  away  —  "out  of  sight,  out  or  mind."  He  is 


THE  AMERICAN  FOREIGN   SERVICE  661 

doing  excellent  service,  but  there  is  no  recognition  of  it  whatever,  and 
there  is  no  way  of  recognizing  it  unless  we  can  have  some  established 
system  under  which  the  higher  places  shall  be  filled  by  promotion.  That 
would  give  an  incentive  to  good  work.  It  would  make  it  possible  to 
recognize  good  work,  and  it  would  get  us  out  of  the  rut  that  we  are  in, 
of  having  the  consular  service  as  an  opportunity  for  retirement  of  gentle- 
men who  have  to  be  provided  for  because  they  have  failed  in  life  here. 

Senator  MONEY.  I  was  going  to  ask  a  question  along  that  line.  There 
is  nothing  in  the  present  system,  is  there,  to  prevent  the  recognition  of 
a  man  who  makes  a  splendid  record?  Why  can  he  not  be  appointed, 
directly  on  your  recommendation  to  the  President,  to  this  vacancy  which 
occurs  over  him?  There  is  no  use  of  rushing  anyone  from  here  over 
there  when  he  is  on  the  ground  and  you  know  what  he  has  done.  You 
have  his  splendid  record  there  before  you. 

Secretary  ROOT.  Senator,  it  is  a  long-established  practice,  and  it  is 
a  practice  which  it  will  be  exceedingly  difficult  to  change  without  the 
consent  of  the  Senate.  The  Senate  is  a  part  of  the  appointing  power. 
The  practice  of  making  such  appointments  has  continued  ever  since  I 
have  known  anything  about  public  life.  It  is  embedded  in  the  procedure 
of  our  Government,  and  I  apprehend  that  if  the  President  were  to  under- 
take now  alone,  by  himself,  to  make  an  entire  change  in  that  matter, 
and  were  to  say,  "I  will  appoint  no  more  citizens  of  the  various  States 
of  consequence  or  importance  whose  interests  are  pressed  by  Senators 
and  Representatives,"  without  first  having  the  approval  of  the  Senate 
for  the  change,  it  would  be  regarded  as  revolutionary  and  would  create 
ill  feeling,  and  it  would  be  an  exceedingly  difficult  resolution  to  adhere 
to.  I  want  you  to  say  that  that  is  the  thing  that  ought  to  be  done,  and 
if  it  is  the  thing  that  ought  to  be  done,  it  seems  to  me  that,  as  a  part  of 
the  appointing  power,  you  ought  to  give  it  your  approval;  and  if  you 
approve  this  bill  you  do  give  that  approval. 

Senator  BACON.  Mr.  Secretary,  I  recognize  the  force  of  what  you  say 
as  to  the  value  of  the  hope  of  promotion  as  an  incentive  to  industry  and 
good  conduct,  and  possibly,  within  certain  limitations,  that  principle 
could  be  advantageously  applied.  The  thought  in  my  mind,  though, 
is  as  to  the  limitation  of  the  appointment  of  these  highest  offices  to  those 
who  are  already  in  the  service  and  having  those  offices  filled  by  promotion. 
It  is  altogether  possible  that  a  man  most  eminently  qualified  for  one  of 
these  highest  consul-generalships  may  not  have  been  in  the  consular 
service.  Take,  as  an  illustration,  the  case  of  Mr.  Wynne,  who  is  now 
consul-general  at  London.  Under  the  proposed  system  he  would  not 
be  eligible  to  that  position.  There  is  another  case  which  is  probably 
a  little  more  marked  in  its  application  to  this  suggestion  —  the  case  of 
a  man  who  was  for  a  long  time  consul  at  Habana.  I  do  not  know  whether 
he  had  the  rank  of  consul-general  or  not. 

Senator  LODGE.    Yes;  he  was  consul-general. 


662  AMERICAN   FEDERAL   GOVERNMENT 

Senator  BACON.  He  was  also  highly  esteemed  by  the  commercial 
interests  of  the  country.  I  assume  he  has  gone  out  of  the  service  and  is 
possibly  now  beyond  the  age  when  he  would  be  eligible ;  but,  for  illustra- 
tion, suppose  in  the  mutations  of  political  fortune  he  had  lost  that  place 
and  an  incoming  Administration  desired  to  reappoint  him  to  a  place 
where  he  had  shown  by  his  experience  and  his  performances  that  he 
was  eminently  qualified  for  the  place,  his  services  could  not  be  availed 
of.  I  recollect  that  I  once  went  to  see  Mr.  Cleveland,  during  his  Ad- 
ministration, in  the  interest  of  a  gentleman  whom  I  thought  would  make 
a  good  consul-general  at  Habana.  Williams  had  been  appointed  by  a 
Republican  President.  Mr.  Cleveland  said  to  me  that  Williams  was 
too  valuable  to  be  displaced,  that  a  matter  of  politics  could  not  be  con- 
sidered, and  he  must  be  retained  because  of  the  great  interests  of  the 
country  which  were  conserved  by  his  retention. 

I  just  gave  that  as  an  illustration,  and  what  I  say  is  more  in  the  line 
of  suggestion  than  argument.  I  do  not  wish  you  to  understand  me  as 
taking  issue  with  you  upon  that  feature  of  the  bill,  but  I  think  it  is  a 
matter  of  sufficient  importance  for  consideration,  whether  this  elastic 
feature  might  not  of  advantage  be  confined  to  some  of  the  lower  posi- 
tions, or  at  least  not  extended  to  the  higher  positions. 

I  think  it  is  frequently  the  case  that  men  who  make  the  most  excellent 
subordinates  makes  very  inefficient  and  poor  principals.  There  have 
been  a  great  many  good  colonels  spoiled  by  being  made  generals. 

Secretary  ROOT.  That  is  quite  true,  but  it  would  be  difficult  to  find 
a  situation  less  open  to  that  difficulty  than  this.  That  is  very  often  the 
case  in  the  Army  and  Navy.  You  will  find  that  a  good  enlisted  man 
often  makes  a  poor  lieutenant,  and  a  good  subaltern  officer  is  very  poor 
when  he  comes  to  be  made  a  general  officer ;  but  here  every  consul  has 
an  independent  command.  The  lowest-grade  consul  is  an  independent 
officer,  and  he  is  performing  the  same  kind  of  duties  that  the  highest 
consul-general  is  performing,  and  you  have  an  opportunity  to  judge 
by  the  way  he  performs  the  duties  of  the  lower-grade  office  how  he 
would  perform  the  duties  of  the  high  office. 

Indeed,  it  is  frequently  the  case  that  the  lower-grade  offices  are  the 
most  difficult  offices ;  but  they  are  of  the  lower  grade  and  lower  salaries, 
because,  while  the  duties  may  be  much  more  difficult  than  those  of  the 
higher  grade,  they  are  less  important.  I  do  not  know  anything  more 
difficult  than  the  position  of  our  consuls  in  some  of  the  Central  and  South 
American  countries,  particularly  consuls  in  countries  where  we  have  no 
resident  minister.  Some  of  them  exhibit  great  ability,  but  they  are  low- 
grade  consulates. 

Senator  LODGE.  Your  theory  would  be  that  by  the  time  you  got  to 
the  high  grade  of  consul-general,  you  would  have  your  men  so 
thoroughly  sifted  out  that  you  could  not  very  well  go  wrong  in  getting 
a  competent  man  ? 


THE  AMERICAN  FOREIGN   SERVICE  663 

Secretary  ROOT.  My  idea  is,  that  with  the  number  we  have  of  low- 
grade  consuls  —  and  the  great  bulk  of  these  consuls  are  low-grade  con- 
suls —  there  is  the  best  possible  opportunity  of  determining  whether  a 
man  is  to  hold  one  of  the  highest  positions. 

With  regard  to  the  Williams  illustration,  there  would  be  no  difficulty 
in  framing  this  bill  so  that  a  reappointment  could  be  made  without  going 
through  the  grades.  It  would  be  quite  appropriate.  That  would  cover 
the  case  like  the  one  of  Williams,  going  out  and  then  being  put 
back. 

Senator  LODGE.    Going  out  from  any  cause? 

Secretary  ROOT.  Yes;  from  any  cause.  If  a  man  has  once  been  in 
the  service,  I  see  no  reason  why  he  should  not  be  treated,  for  the  pur- 
pose of  reappointment,  just  as  a  man  who  is  in  the  service  now  for 
purposes  of  reassignment. 

Senator  CULLOM.    His  qualifications  being  already  proven. 

Secretary  ROOT.    Being  already  proven. 

Senator  MONEY.  I  do  not  recollect  whether  you  said  confirmations 
are  necessary  upon  these  promotions  or.  not. 

Secretary  ROOT.    Yes,  sir. 

Senator  MONEY.  Confirmations  are  necessary,  just  as  in  the  case  of 
an  original  appointment? 

Secretary  ROOT.    Yes. 

Then,  as  to  the  other  illustration.  Such  an  arrangement  would  have 
cut  Mr.  Wynne  out,  but  I  feel  pretty  confident  on  the  general  proposi- 
tion that  you  would  gain  much  more  than  you  would  lose.  You  would 
lose  some  good  men,  but  you  would  gain  by  barring  a  great  many  men 
who  are  not  good  men.  As  a  rule,  I  think  it  is  safe  to  say  that  a  man 
who  has  passed  the  age  of  the  youngest  of  us  at  this  table  has  become 
too  old  to  learn  new  tricks. 

Senator  FRYE.    He  ought  to  be  chloroformed? 

Secretary  ROOT.  No;  far  from  it.  But  he  ought  not  to  undertake 
an  entirely  new  business  and  enter  upon  an  entirely  new  field  of  action. 
There  may  be  exceptional  men  who  could,  but  the  exceptions  would  be 
so  few  that,  as  a  general  proposition,  in  the  interest  of  the  service,  men 
who  have  lived  through  the  greater  part  of  their  lives  ought  not  to  be 
taken  into  the  new  field.  The  Government  will  have  better  service  if 
it  picks  men  comparatively  young,  who  still  have  enthusiasm,  energy, 
ambition,  and  the  power  of  making  a  career,  and  lets  them  learn  the 
consular  business  then,  instead  of  taking  men  who  have  lived  through 
the  greater  part  of  their  lives  and  who  have  reached  the  time  when  they 
rather  want  rest. 

Senator  BACON.  Mr.  Secretary,  what  is  the  term  of  office  proposed 
in  this  bill?  Are  they  life  appointments? 

Secretary  ROOT.    There  is  no  time  fixed.    It  is  left  just  as  it  is  now. 

Senator  MORGAN.    During  good  behavior. 


664  AMERICAN   FEDERAL   GOVERNMENT 

Senator  LODGE.    It  is  not  changed. 

Senator  BACON.  I  understand ;  but,  then,  the  new  system,  if  adopted, 
would  raise  some  question  on  that  subject.  For  instance,  as  it  is  now, 
when  an  administration  changes  it  is  perfectly  competent  and  rather 
recognized  as  a  rule  that  all  of  the  consuls  except  such  as  those  in  the 
class  to  which  Mr.  Williams  belonged  should  go  out  and  the  representa- 
tives of  the  other  party  come  in. 

Senator  LODGE.    That  has  been  the  great  misfortune  of  the  service. 

Senator  BACON.  Under  this  you  say  there  is  no  change.  The  right 
of  the  President  to  reappoint  would  be  the  same  as  now,  but  the  origi- 
nal appointment  could  only  be  to  the  lowest  grade.  In  other  words, 
he  could  only  displace  the  lowest  grade. 

Secretary  ROOT.  He  could  displace  anybody  he  chose,  filling  his 
place  by  promotion  and  making  vacancies  in  the  lower  grades. 

Senator  BACON.  What  I  mean  is  this :  He  could  not  appoint  a  man 
to  any  position  except  the  lowest  grade. 

Senator  LODGE.  Of  course,  constitutionally,  he  can  disregard  the 
law  altogether. 

Senator  BACON.    I  am  not  so  sure  of  that. 

Senator  LODGE.  Consuls  are  specifically  expressed  in  the  Constitu- 
tion, and  we  can  not  limit  or  restrict  his  right  of  appointment. 

Senator  BACON.  You  might  say  the  same  thing  of  an  officer  in  the 
Army.  I  am  not  so  sure  about  that. 

Senator  FORAKER.  It  would  be  better  for  the  two  Departments  to 
work  in  harmony,  especially  when  it  comes  to  a  matter  of 
appropriations. 

Senator  BACON.  Yes.  I  am  asking  that  question  simply  for  the 
purpose  of  seeing  what  the  practical  working  of  it  will  be.  For  instance, 
without  any  change  of  administration,  the  President  could,  of  course, 
remove  anyone  from  any  grade;  but  then  when  he  removes  a  man  he 
can  only  fill  the  lowest  place,  and  if  there  were  a  change  in  administra- 
tion the  same  rule  would  hold  good. 

Senator  LODGE.  I  would  ask  the  Secretary  if  it  is  not  the  point  of 
the  law  to  give  to  the  service  greater  stability,  and  whether  that  is  not 
what  it  needs  more  than  anything  else. 

Senator  BACON.  I  think  that,  within  bounds,  is  a  very  desirable 
thing. 

Secretary  ROOT.  That  does  produce  this  effect,  Senator.  It  takes 
away  the  opportunity  to  turn  a  given  man  out  for  the  purpose  of  put- 
ting another  given  man  in  his  place.  I  think  that  ought  to  be  taken 
away.  It  leaves  the  opportunity  to  turn  out  a  given  man  because  he 
is  not  doing  good  work,  thereby  creating  a  vacancy  in  the  lower  grade 
which  can  be  filled  by  somebody  else.  It  leaves  it  still  possible,  in  case 
of  a  change  of  administration,  to  effect  a  gradual  substitution  of  men 
of  one  party  for  men  of  another  party,  but  it  makes  it  a  little  more  dif- 


THE  AMERICAN  FOREIGN   SERVICE  665 

ficult,  which,  I  suppose,  is  about  all  that  can  be  done.    It  takes  the  ele- 
ment of  personal  pressure  out  of  it. 


Secretary  ROOT.  I  have  written  into  the  bill  a  few  words  which  seem 
to  me  to  accomplish  the  object  that  seemed  to  me  to  be  the  first  impres- 
sions of  the  committee  in  regard  to  taking  the  consular  service  out  of 
political  limitations. 

In  section  8,  on  page  4  of  the  bill,  insert,  after  the  word  "shall,"  in 
line  15,  the  words  "  without  regard  to  their  political  affiliations." 

Senator  FORAKER.    What  precedes  it? 

Secretary  ROOT.    I  will  read  the  whole.    Section  8  would  then  read: 

That  it  shall  be  the  duty  of  said  board  — 

That  is,  the  examination  board  — 

to  formulate  rules  for  and  hold  examinations  of  applicants  for  admission  to  the 
consular  service;  and  whenever  a  vacancy  shall  occur  in  the  sixth  or  seventh 
class  of  consuls  which  the  President  deems  it  expedient  to  fill,  the  Secretary  of 
State  shall  require  the  said  board  to  examine  such  applicants  as  shall,  without 
regard  to  their  political  affiliations,  be  designated  therefor  by  the  President. 

Senator  BACON.  Mr.  Secretary,  is  that  sufficient?  If  you  are  going 
to  take  this  out  of  politics,  is  it  not  necessary  to  do  in  that  case  as  we 
do  in  some  other  instances  where  it  is  expressly  provided  that  the  offices 
shall  be  filled  in  certain  proportions  between  the  political  parties  ? 

Senator  LODGE.  That  is  where  we  fill  boards.  I  do  not  think  you 
could  take  an  appointive  service  and  do  that. 

Senator  BACON.  Pardon  me  a  minute.  In  the  civil  service  that  is  not 
necessary  because  it  is  competitive  and  any  man  is  eligible  to  make  the 
effort;  but  where  the  designation  is  exclusive,  where  no  man  can  be 
eligible  for  examination  unless  he  has  the  designation,  it  is  quite  differ- 
ent, and  while  it  would  possibly  not  be  proper  to  say  that  they  should 
be  filled  in  the  exact  proportions  that  we  provide  for  in  the  case  of  boards, 
it  could  be  said  that  they  shall  be  filled  as  nearly  as  practicable  with  an 
equal  division  between  the  parties,  and  I  think  also  something  ought 
to  be  said  to  desectionalize  it. 

Senator  LODGE.    That  is  going  to  be  covered  by  the  registered  quota. 

Secretary  ROOT,  I  would  say  that  it  -was  desirable,  with  regard  to 
that,  to  accomplish  the  object  —  it  is  only  a  suggestion ;  I  am  not  bigoted 
about  it  —  to  employ  a  certain  reserve  in  language  in  dealing  with  the 
exercise  of  the  President's  power  to  appoint  consuls,  which  is  specifically 
vested  in  him  by  the  Constitution.  I  drafted  it  first  with  the  statement 
"it  shall  be,"  and  that  grated  a  little  in  the  treatment  by  Congress  of 
the  President's  constitutional  power,  and  it  seemed  to  me  that  language 


666  AMERICAN   FEDERAL   GOVERNMENT 

a  little  more  reserved,  which  really  did  establish  a  rule  morally  binding 
upon  the  President,  was  rather  more  to  be  desired. 

Senator  BACON.  You  could  still  regard  that  consideration  and  at 
the  same  time  effect  the  purpose,  which  is  to  apply  that  moral  obliga- 
tion without  a  strict  legal  necessity  to  distribute  them  as  nearly  as  pos- 
sible equally  between  the  opposing  political  parties;  and  this  further 
is  to  be  said,  that  while  this  might  be  construed  or  considered  an  at- 
tempt at  limitation  upon  the  constitutional  authority  of  the  President, 
it  is  not  to  be  overlooked  that  this  bill  proposes  to  confer  upon  him  very 
much  enlarged  powers,  and  to  put,  in  the  administration  of  the  consular 
service,  very  much  larger  discretion  and  control  in  the  hands  of  the 
President,  really  taking  it  out  almost  entirely  from  the  legislative  control. 

So  long  as  this  statute  remains  upon  the  books,  the  only  participation 
of  Congress  would  be  in  the  part  of  Congress  which  we  represent  in  the 
confirmation  or  rejection  of  the  nominees.  Outside  of  that  the  service 
would  be  absolutely  removed  from  all  legislative  control  except  the 
control  which  would  still  remain  of  the  right  and  power  to  amend  and 
change  the  law. 

So  that  when  we  consider  the  question  whether  the  suggestion  would 
be  an  encroachment  upon  the  executive  constitutional  power,  there  is 
to  be  taken  into  consideration  the  fact  that  it  is  a  very  great  enlargement 
in  other  respects,  and  while  you  could  not  say  it  was  a  quid  pro  quo,  the 
enlarged  power  which  would  be  conferred  by  this  would  remove,  I  think, 
any  possible  suggestion  that  the  effort  was  to  limit  the  power  of  the 
President. 

I  can  not  entirely  overlook  in  this  consideration  the  fact  that  our 
system  of  government  is  very  different  from  that  of  the  English.  The 
English  put  large  powers  in  the  hands  of  the  executive.  They  are  really 
putting  them  in  the  hands  of  the  legislative  department  of  the  govern- 
ment, because  the  executive  powers  are  exercised  by  the  legislative 
branch. 

Secretary  ROOT.    By  a  committee  of  the  House  of  Commons. 

Senator  BACON.  It  is  a  very  different  thing  here.  The  tendency 
here  is  exactly  the  other  way,  that  the  executive  begins  to  control  the 
legislative.  People  now,  when  they  want  legislation  which  will  affect 
certain  things,  do  not  come  to  Senators  and  Representatives  as  formerly, 
but  go  to  the  White  House  and  the  Departments.  I  see  they  are  even 
now  going  to  the  Bureau  of  Insular  Affairs  to  get  legislation  about  the 
Philippines.  They  are  ignoring  my  friend  on  the  other  side  of  the  table, 
the  chairman  of  the  Committee  on  the  Philippines,  and  going  to  Edwards. 

Senator  McCREARY.  I  think  Senator  Bacon  has  raised  the  point  that 
is  of  vital  importance  in  this  bill.  I  like  the  general  provisions  of  the 
bill.  I  have  felt  and  known  for  a  long  time  that  the  consular  service 
needed  reorganizing.  My  experience  with  it  was  not  encouraging  at  all. 
It  needs  reorganization  very  badly,  and  there  are  many  things  in  this  bill 


THE  AMERICAN   FOREIGN  SERVICE  667 

I  like  very  much;  but  the  great  obstacle,  to  me,  has  been  that  this  bill 
of  course  seeks  to  put  in  for  life  certain  men.  If  there  is  no  provision 
in  the  bill  such  as  is  suggested  by  the  Senator  from  Georgia,  the  prob- 
abilities are  that  pretty  much  all  the  people  that  would  be  put  in  would 
belong  to  one  political  party.  The  consular  service  is  a  great  service. 
It  seeks  to  accomplish  great  ends  and  good  ends,  and  I  think  it  ought 
to  be  just  as  nearly  nonpolitical  as  possible. 

Our  Government,  as  the  Senator  stated,  is  different  from  the  Gov- 
ernment of  Great  Britain  and  from  most  of  the  other  governments  in 
Europe.  Ours  is  a  popular  Government.  While  one  party  is  in  power 
to-day,  another  party  may  come  into  power  by  and  by,  and  that  party, 
if  it  should  come  into  power,  would  of  course  find  men  in  the  service, 
unless  we  have  something  like  that  suggested  by  the  Senator  from 
Georgia,  all  differing,  or  most  of  them  differing;  and  we  ought  to  have 
in  this  bill  some  kind  of  provision  which  would  necessitate,  which  would 
cause  a  division,  so  that  each  political  party  should  have  representation. 
I  am  not  sure  that  I  would  contend  for  as  much  as  Senator  Bacon  con- 
tends, that  they  should  be  equally  divided,  but  there  ought  to  be  in  the 
first  place  a  distribution  of  the  consuls  among  the  States. 

Secretary  ROOT.  In  endeavoring  to  meet  the  suggestion  on  another 
point,  I  have  drawn  this  clause  in  order  to  get  something  on  paper  for 
consideration : 

So  far  as  practicable,  and  except  as  the  President  shall  otherwise  determine 
in  particular  cases,  the  designation  of  candidates  for  examination  shall  be  made 
in  such  manner  as  most  effectively  to  distribute  the  appointments  among  the 
several  States  and  Territories  in  proportion  of  their  representation  in  Congress. 

And  such  designation  shall  in  all  cases  be  made  without  regard  to  the  politi- 
cal affiliations  of  the  candidates. 

I,  naturally  enough,  had  in  mind  the  practice  in  army  appointments, 
and  I  think  it  is  worth  your  while  to  consider  the  experience  which  we 
have  had  in  that  regard.  I  do  not  think  it  is  too  much  to  say  that  we 
have  taken  the  Army  out  of  politics.  I  do  not  think,  during  the  last 
years  that  I  was  in  the  War  Department,  that  the  Democratic  Senators 
had  any  feeling  that  when  there  was  a  question  of  an  appointment  to 
the  Army  there  was  any  difference  between  a  Democrat  and  a  Republi- 
can. I  think  I  had  the  confidence  of  Senator  Cockrell  just  as  completely 
as  I  had  the  confidence  of  any  Republican  member  of  the  Committee 
on  Military  Affairs,  and  that  feature  of  it  made  no  difference.  The 
State  of  Virginia  led  in  the  number  of  appointments  to  the  Army,  and 
it  led  because  it  had  the  Virginia  Military  Institute,  which  has  turned 
out  a  great  number  of  very  fine,  able  young  fellows. 

Senator  BACON.  I  think  there  has  always  been  a  general  feeling  — 
I  know  I  have  had  it  —  that  there  is  a  distinction  between  appointments 
in  the  military  service  and  appointments  in  the  civil  service.  I  never 


668  AMERICAN  FEDERAL   GOVERNMENT 

asked  for  the  appointment  of  anybody  in  the  civil  service.  I  have  not 
hesitated  to  ask  it  in  the  military  service.  I  thought  they  stood  on  dif- 
ferent platforms  altogether,  and  I  think  the  Spanish  war,  which  put  so 
many  of  these  young  men  in  the  line  of  appointment,  had  very  much 
the  effect  that  you  have  just  stated,  of  breaking  down  anything  like 
political  distinctions  in  your  appointments.  Whether  or  not  that  could 
be  accomplished  in  the  consular  service,  which  is  more  a  matter  of  dollars 
and  cents,  is  another  question.  Army  appointments  are  not  matters  of 
revenue  or  income.  They  are  on  a  different  line  altogether. 

Secretary  ROOT.  It  seems  to  me,  Senator,  that  there  is  no  branch  of 
the  service  in  which  that  rule  ought  to  be  applied  more  clearly  than  to 
the  consular  service.  Under  the  present  system  I  found  the  clerks  in  the 
State  Department  were  keeping  tab  on  appointments  with  reference  to 
percentage  of  Republican  vote.  I  think  it  is  all  wrong.  It  is  a  viola- 
tion of  the  theory  on  which  the  Senate  is  expected  to  act  in  re- 
gard to  appointments  and  in  regard  to  foreign  affairs  generally.  The 
President  comes  to  the  Senate  for  its  advice  without  distinction  of  party. 
You  vote  on  treaties,  and  you  are  not  expected  to  vote  in  accordance  with 
the  distinction  of  party.  That  principle  is  intended  by  the  Constitution 
to  pervade  the  treatment  of  foreign  affairs,  because  in  foreign  affairs 
every  man  who  is  sent  abroad  is  representing  the  country,  and  the  good 
name  and  credit  of  the  country  depend  upon  his  being  a  creditable 
representative.  It  seems  to  me  if  there  is  any  place  where  the  distinction 
of  party  ought  to  be  dropped  it  is  when  we  pass  beyond  the  confines  of 
our  country. 

Senator  BACON.    Yet  that  is  not  so  in  practice. 

Secretary  ROOT.  I  know  it  is  not  so  in  practice,  and  I  would  like  to 
see  the  practice  changed. 

Senator  FRYE.  Do  you  think  you  could  put  into  a  bill  of  this  kind  a 
provision  that  the  appointments  hereafter  made  in  the  consular  service 
should  be  divided  between  the  two  political  parties? 

Secretary  ROOT.    I  do  not.    I  think  that  would  be  a  bad  provision. 

Senator  BACON.  You  say  they  should  be  designated  without  regard 
to  political  affiliations. 

Secretary  ROOT.    Yes;  I  think  that  is  right. 

Senator  BACON.  And  while  the  policy  might  make  a  difference,  the 
principle  is  the  same. 

Secretary  ROOT.  One  is  excluding  political  considerations  and  the 
other  is  including  political  considerations.  One  is  declaring  what  I 
believe  to  be  the  sound  principle,  that  the  question  of  party  affiliations 
should  not  determine  in  the  selection  of  a  representative  who  is  to  rep- 
resent us  abroad,  and  the  other  is  compelling  the  President  to  take  into 
consideration  party  affiliations  and  compelling  him  to  inquire  whether 
a  young  man  is  a  Democrat  or  a  Republican  before  he  determines  in 
regard  to  the  selection. 


THE  AMERICAN   FOREIGN   SERVICE  669 

Senator  BACON.    He  will  always  know  that. 

Secretary  ROOT.    No. 

Senator  MORGAN.  That  is  just  the  difference  between  the  two  situ- 
ations. I  think  the  Secretary  is  right  about  it. 

Secretary  ROOT.  I  give  you  my  word  that  in  the  four  years  and  a 
half  I  was  in  the  War  Department  there  was  never  such  a  question 
asked  —  whether  the  young  man  was  a  Democrat  or  Republican. 

Senator  BACON.    That  is  true  in  the  military  service. 

Secretary  ROOT.    Well,  it  ought  to  be  true  of  the  consular  service. 

If  you  provide  that  the  designations  for  examination  in  the  consular 
service  shall  be  made  without  regard  to  political  affiliations,  you  have 
then  established  the  same  rule  which  is  applied  in  the  Army,  and  it 
seems  to  me  the  same  result  will  follow,  that  it  will  stop  inquiry,  and 
necessarily  that  excludes  the  right  of  referees  and  chairmen  of  political 
committees  to  propose  candidates  and  insist  that  they  are  entitled  to 
have  their  recommendation  taken  for  their  section  of  the  country.  It 
causes  the  method  of  appointment  to  revert  to  the  authorized  representa- 
tives of  the  different  States  for  advice,  the  men  elected  by  the  different 
States  to  represent  them,  no  matter  whether  those  representatives  belong 
to  one  party  or  another  party.  It  seems  to  me  it  is  much  better  to  put 
it  in  that  shape. 

Senator  LODGE.  The  other  way  is  forcing  politics  into  it,  it  seems 
to  me. 

Senator  McCREARY.  I  think  when  you  use  the  words  "without  re- 
gard to  party  affiliations,"  that  is  a  long  step  in  the  way  of  improvement 
over  what  we  have  had  for  so  many  years  in  both  political  parties.  I 
am  very  glad  you  put  that  in.  I  know  it  would  be  a  very  great  change 
to  say  now  we  should  have  half,  and  therefore  I  think  the  proposition 
made  by  the  Secretary  is  a  good  step. 

Senator  BACON.  I  did  not  propose  that  such  definite  language  as 
"one-half"  should  be  used.  The  language  I  would  suggest  would  be 
simply  to  the  effect  that  they  should  be  as  nearly  as  may  be  equally 
divided;  something  of  that  sort. 

Senator  CLARK,  of  Montana.  This  relates  to  the  examination,  how- 
ever, and  not  to  the  appointment. 

Senator  FORAKER.  You  could  say  that  not  more  than  one-half  should 
be  appointed  from  any  one  party. 

Senator  CLARK,  of  Montana.    That  would  cover  it. 

Senator  CLARK,  of  Wyoming.  It  seems  to  me,  Senator  Foraker,  that 
would  be  unfortunate  in  view  of  the  Secretary's  statement,  which  I 
think  is  the  proper  one,  that  it  should  be  taken  out  of  politics  instead 
of  forced  in. 

Senator  FRYE.  I  do  not  think  anything  of  the  kind  ought  to  be  in  the 
bill  at  all. 

Senator  MORGAN.     I  agree  with  the  chairman  of  the  committee  on 


670  AMERICAN  FEDERAL   GOVERNMENT 

that  proposition.  There  never  ought  to  be  any  active  legislation  by 
Congress.  There  should  never  be  any  reference  to  it  at  all.  It  is  a 
matter  about  which  the  Executive  has  the  right  to  determine  for  him- 
self in  making  his  selections  for  office,  and  I  made  the  suggestion  the 
other  day  with  the  view  of  trying  to  meet  the  difficulty  in  this  committee, 
and  with  the  hope  that  we  would  go  before  the  Senate  with  a  unanimous 
agreement  that  we  could  stand  by  on  that  very  unsatisfactory  and  un- 
fortunate proposition. 

Secretary  ROOT.  I  marked  a  month  ago  on  a  list  of  applicants  an 
applicant  from  Georgia  for  appointment.  I  found  that  he  had  letters 
from  Senator  Clay,  among  others.  I  made  a  note,  to  send  to  Senator 
Clay  when  he  got  to  Washington  for  further  information  about  him. 
I  do  not  want  to  inquire  whether  that  young  man  is  a  Democrat  or  a 
Republican.  I  think  the  rule  that  he  shall  be  considered  without  regard 
to  his  political  affiliations  is  the  true  rule  to  apply  to  him,  and  I  think 
Senator  Clay,  who  has  written  a  letter  about  him,  is  the  proper  person 
to  apply  to,  and  a  statement  that  the  appointment  shall  be  made  without 
regard  to  any  political  affiliations  precludes  any  political  committee  or 
referee  in  the  State  of  Georgia  saying  anything  about  him. 

Senator  FORAKER.  I  think  that  is  a  very  good  expression  to  use.  If 
you  were  to  undertake  to  describe  the  number  beyond  which  any  one 
party  should  not  have  representation,  would  not  that  raise  a  constitu- 
tional query  as  to  whether  or  not  we  have  power  to  restrict  the  President's 
selections  to  any  particular  class. 

Senator  BACON.  You  might  say  the  same  thing  as  to  his  appointment 
of  an  Interstate  Commerce  Commissioner. 

Senator  LODGE.  No ;  the  Interstate  Commerce  Commissioner  is  not 
provided  for  specifically  in  the  Constitution. 

Senator  BACON.    But  he  is  a  constitutional  officer. 

Senator  LODGE.  But  in  creating  that  office  we  can  throw  around  it 
any  conditions  we  choose. 

Senator  BACON.  No;  not  so  as  to  limit  the  power  of  the  President 
where  the  Constitution  says  he  shall  have  the  power  to  nominate  all 
officers. 

Senator  LODGE.    He  can  not  have  it  when  we  create  it  in  that  way. 

Senator  BACON.  It  is  not  simply  those  named  in  the  Constitution. 
If  you  are  correct,  the  numbers  named  in  the  Constitution  are  very 
few  as  compared  with  the  vast  number  created  by  Congress,  and  if 
your  theory  is  correct  it  would  absolutely  limit  the  power  of  the  President 
to  the  appointment  of  few  officers. 

Secretary  ROOT.  Let  me  say  that  since  the  last  meeting  of  the  com- 
mittee I  have  consulted  the  President  specially  on  this  subject,  and  he 
instructs  me  to  say  that  he  very  heartily  agrees  with  the  idea  of  taking 
these  appointments  out  of  politics,  of  having  them  made  without  regard  to 
political  affiliations,  and  would  be  quite  ready  to  accept  such  a  provision. 


THE   AMERICAN   FOREIGN   SERVICE          .     671 

There  is  only  one  further  thing  I  want  to  say  about  this  now,  and  that 
is  that  the  agitation  of  this  subject  has  been  going  on  for  many  years. 
I  have  found  ten  favorable  reports  from  committees  of  the  Senate  and 
House  of  bills  to  reorganize  the  consular  service,  and  among  them  I  have 
here  a  report  made  to  this  committee  by  Senator  Morgan  ten  years  ago, 
characterized  by  the  thoroughness  which  is  to  be  found  in  everything 
that  Senator  Morgan  does,  in  which  are  laid  down  the  main  principles 
embodied  in  this  bill,  approved  by  this  committee.  In  the  meantime, 
the  agitation  has  gone  on  in  the  country. 

Now,  there  are  many  things  agitated  fictitiously.  The  mere  fact  that 
somebody  comes  here  and  is  anxious  to  have  some  change  of  the  law 
does  not  necessarily  indicate  that  it  ought  to  be  made.  Those  agitations 
which  are  without  substance  die  away.  Those  which  have  substance 
remain  and  grow.  This  has  remained  and  it  has  grown,  and  we  have 
communications  from  over  three  hundred  commercial  and  business 
bodies  scattered  all  over  the  country  urging  that  something  be  done. 
It  seems  to  me  that  the  process  has  gone  so  far  that  Congress  should, 
in  due  self-respect,  take  action,  and  that  whatever  conclusions  you  reach 
upon  this  subject  should  be  conclusions  not  to  be  reported  and  lost  in 
the  shuffle,  but  to  be  put  through  and  carried  into  effective  legislation; 
that  the  due  regard  which  the  public  ought  to  have  for  the  efficiency  of 
Congress  as  a  practical  legislating  body  calls  for  that  attention  to  this 
particular  business. 


REGULATIONS  GOVERNING  APPOINTMENTS  AND  PRO- 
MOTIONS IN  THE  CONSULAR  SERVICE   OF  THE 
UNITED   STATES1 

WHEREAS,  The  Congress,  by  Section  1753  of  the  Revised  Statutes  of 
the  United  States  has  provided  as  follows :  — 

"The  President  is  authorized  to  prescribe  such  regulations  for  the  admission 
of  persons  into  the  civil  service  of  the  United  States  as  may  best  promote  the 
efficiency  thereof,  and  ascertain  the  fitness  of  each  candidate  in  respect  to  age, 
health,  character,  knowledge,  and  ability  for  the  branch  of  service  into  which 
he  seeks  to  enter;  and  for  this  purpose  he  may  employ  suitable  persons  to 
conduct  such  inquiries,  and  may  prescribe  their  duties,  and  establish  regula- 
tions for  the  conduct  of  persons  who  may  receive  appointments  in  the  civil 
service." 

And,  whereas,  the  Congress  has  classified  and  graded  the  consuls- 
general  and  consuls  of  the  United  States  by  the  act  entitled  "An  act  to 
provide  for  tlje  reorganization  of  the  consular  service  of  the  United 

1  As  amended  by  executive  orders,  etc.,  up  to  June,  1908. 


672  AMERICAN   FEDERAL   GOVERNMENT 

States,"  approved  April  5,  1906,  and  has  thereby  made  it  practicable 
to  extend  to  that  branch  of  the  civil  service  the  aforesaid  provisions  of 
the  Revised  Statutes  and  the  principles  embodied  in  the  Civil  Service 
Act  of  January  16,  1883. 

Now,  therefore,  in  the  exercise  of  the  powers  conferred  upon  him  by 
the  Constitution  and  laws  of  the  United  States,  the  President  makes 
the  following  regulations  to  govern  the  selection  of  consuls  general  and 
consuls  in  the  civil  service  of  the  United  States,  subject  always  to  the 
advice  and  consent  of  the  Senate :  — 

1.  Vacancies  in  the  office  of  consul-general  and  in  the  office  of  consul 
above  class  8  shall  be  filled  by  promotion  from  the  lower  grades  of  the 
consular  service,  based  upon  ability  and  efficiency  as  shown  in  the  service. 

2.  Vacancies  in  the  office  of  consul  of  class  8  and  of  consul  of  class  9 
shall  be  filled: 

(a)  By  promotion  on  the  basis  of  ability  and  efficiency  as  shown  in 
the  service,  of  consular  assistants  and  of  vice  consuls,  deputy  consuls, 
consular  agents,  student  interpreters  and  interpreters  in  the  consular 
or  diplomatic  service,  who  shall  have  been  appointed  to  such  offices 
upon  examination. 

(b)  By  new  appointments  of  candidates  who  have  passed  a  satis- 
factory examination  for  appointment  as  consul  as  hereafter  provided. 

3.  Persons  in  the  service  of  the  Department  of  State  with  salaries 
of  two  thousand  dollars  or  upwards  shall  be  eligible  for  promotion,  on 
the  basis  of  ability  and  efficiency  as  shown  in  the  service,  to  any  grade 
of  the  consular  service  above  class  8  of  consuls. 

4.  The  Secretary  of  State,   or  such  officer  of  the  Department  of 
State  as  the  President  shall  designate,  the  Chief  Clerk  of  the  Depart- 
ment of   State,  and  the  Chief  Examiner  of  the  Civil   Service   Com- 
mission,   or   some   person   whom   said    Commission    shall    designate, 
shall  constitute  a  Board  of  Examiners  for  admission  to  the  consular 
service. 

5.  It  shall  be  the  duty  of  the  Board  of  Examiners  to  formulate  rules 
for  and  hold  examinations  of  applicants  for  admission  to  the  consular 
service. 

6.  The  scope  and  method  of   the  examinations  shall  be  determined 
by  the  Board  of  Examiners,  but  among  the  subjects  shall  be  included 
at  least  one  modern  language  other  than  English ;  the  natural,  industrial 
and  commercial  resources  and  the  commerce  of  the  United  States, 
especially  with  reference  to  the  possibilities  of  increasing  and  extending 
the  trade  of  the  United  States  with  foreign  countries ;  political  economy ; 
elements  of  international,  commercial  and  maritime  law. 

7.  Examination  papers  shall  be  rated  on  a  scale  of  100,  and  no  person 
rated  at  less  than  80  shall  be  eligible  for  certification. 

8.  No  one  shall  be  examined  who  is  under  twenty-one  or  over  fifty 
years  of  age,  or  who  is  not  a  citizen  of  the  United  States,  or  who  is  not 


THE  AMERICAN   FOREIGN  SERVICE  673 

of  good  character  and  habits  and  physically  and  mentally  qualified  for 
the  proper  performance  of  consular  work,  or  who  has  not  been  specially 
designated  by  the  President  for  appointment  to  the  consular  service 
subject  to  examination. 

9.  Whenever  a  vacancy  shall  occur  in  the  eighth  or  ninth  class  of 
consuls  which  the  President  may  deem  it  expedient  to  fill,  the  Secretary 
of  State  shall  inform  the  Board  of  Examiners,  who  shall  certify  to  him 
the  list  of  those  persons  eligible  for  appointment,  accompanying  the 
certificate  with  a  detailed  report  showing  the  qualifications,  as  revealed 
by  examination,  of  the  persons  so  certified.     If  it  be  desired  to  fill  a 
vacancy  in  a  consulate  in  a  country  in  which  the  United  States  exercises 
extraterritorial  jurisdiction,  the  Secretary  of  State  shall  so  inform  the 
Board  of  Examiners,  who  shall  include  in  the  list  of  names  certified 
by  it  only  such  persons  as  have  passed  the  examination  provided  for 
in  this  order,  and  who  also  have  passed  an  examination  in  the  fun- 
damental principles  of  the  common  law,  the  rules  of  evidence  and 
the  trial  of  civil  and  criminal  cases.     The  list  of  names  which  the 
Board  of  Examiners  shall  certify  shall  be  sent  to  the  President  for  his 
information. 

10.  No  promotion  shall  be  made  except  for  efficiency,  as  shown  by 
the  work  that  the  officer  has  accomplished,  the  ability,  promptness  and 
diligence  displayed  by  him  in  the  performance  of  all  his  official  duties, 
his  conduct  and  his  fitness  for  the  consular  service. 

11.  It  shall  be  the  duty  of  the  Board  of  Examiners  to  formulate  rules 
for  and  hold  examinations  of  persons  designated  for  appointment  as 
consular  assistant  or  as  student  interpreter,  and  of  such  persons  desig- 
nated for  appointment  as  vice  consul,  deputy  consul,  and  consular  agent 
as  shall  desire  to  become  eligible  for  promotion.    The  scope  and  method 
of  such  examination  shall  be  determined  by  the  Board  of  Examiners, 
but   it   shall   include   the   same   subjects   hereinbefore   prescribed  for 
the  examination  of  consuls.     Any  vice  consul,  deputy  consul  or  con- 
sular agent   now  in  the  service,   upon  passing  such   an  examination 
shall    become   eligible    for    promotion,   as    if    appointed    upon   such 
examination. 

12.  In  designations  for  appointment  subject  to  examination  and  in 
appointments  after  examination,  due  regard  will  be  had  to  the  rule, 
that  as  between  candidates  of  equal  merit,  appointments  should  be  so 
made  as  to  secure  proportional  representation  of  all  the  States  and 
Territories  in  the  consular  service;    and  neither  in  the  designation  for 
examination  or  certification  or  appointment  will  the  political  affiliations 
of  the  candidate  be  considered. 

THEODORE  ROOSEVELT. 
THE  WHITE  HOUSE, 

June  27th,  1906. 

43 


674  AMERICAN   FEDERAL   GOVERNMENT 


REGULATIONS   GOVERNING  EXAMINATIONS 

IN  pursuance  of  the  Executive  order  of  June  27,  1906,  whereby  the 
President  promulgated  regulations  governing  appointments  and  pro- 
motions in  the  consular  service,  the  following  rules  have  been  adopted 
by  the  undersigned  Board  of  Examiners,  who,  under  that  order,  have 
been  designated  to  formulate  rules  for  and  hold  examinations  of  appli- 
cants for  admission  to  the  consular  service  whom  the  President  shall 
have  designated  for  examination  to  determine  their  eligibility  for  ap- 
pointment therein: 

1.  The  examinations  will  be  the  same  for  all  grades  and  will  be  to 
determine  a  candidate's  eligibility  for  appointment  in  the  consular  ser- 
vice, irrespective  of  the  grade  for  which  he  may  have  been  designated 
for  examination  and  without  regard  to  any  particular  office  for  which 
he  may  be  selected. 

2.  The  examinations  will  consist  of  an  oral  and  a  written  one,  the 
two  counting  equally.     The  object  of  the  oral  examination  will  be  to 
determine  the  candidate's  business  ability,  alertness,  general  contem- 
porary information,  and  natural  fitness  for  the  service,  including  moral, 
mental,   and  physical  qualifications,   character,   address,   and  general 
education  and  good  command  of  English.    In  this  part  of  the  examina- 
tion the  applications  previously  filed  will  be  given  due  weight  by  the 
Board  of  Examiners,  especially  as  evidence  of  the  applicant's  business 
experience  and  ability.     The  written  examination  will  include  those 
subjects  mentioned  in  the  Executive  order,  to  wit,  French,  German,  or 
Spanish,  or  at  least  one  modern  language  other  than  English;    the 
natural,  industrial,  and  commercial  resources  and  the  commerce  of  the 
United  States,  especially  with  reference  to  possibilities  of  increasing  and 
extending  the  foreign  trade  of  the  United  States;    political  economy, 
and  the  elements  of  international,  commercial,  and  maritime  law.     It 
will  likewise  include  American  history,  government,  and  institutions; 
political  and  commercial  geography ;  arithmetic  (as  used  in  commercial 
statistics,   tariff  calculations,   exchange,   accounts,   etc.) ;    the  modern 
history,  since  1850,  of  Europe,  Latin  America,  and  the  Far  East,  with 
particular  attention  to  political,  commercial,  and  economic  tendencies. 
In  the  written  examination,  composition,  grammar,  punctuation,  spelling, 
and  writing  will  be  given  attention. 

3.  To  become  eligible  for  appointment,  except  as  student  interpreter, 
in  a  country  where  the  United  States  exercises  extraterritorial  jurisdic- 
tion, the  applicant  must  pass  the  examination  outlined  above,  but  sup- 
plemented by  questions  to  determine  his  knowledge  of  the  fundamental 
principles  of  common  law,  the  rules  of  evidence,  and  the  trial  of  civil 
and  criminal  cases. 

4.  The  examinations  to  be  given  candidates  for  appointment  as  stu- 


THE  AMERICAN   FOREIGN   SERVICE  675 

dent  interpreters  will  follow  the  same  course  as  in  the  case  of  other  consu- 
lar officers,  provided,  however,  that  no  one  will  be  examined  for  admission 
to  the  consular  service  as  a  student  interpreter  who  is  not  between  the 
ages  of  nineteen  and  twenty-six,  inclusive,  and  unmarried ;  and,  provided 
further,  that  upon  appointment  each  student  interpreter  shall  sign  an 
agreement  to  continue  in  the  service  so  long  as  his  services  may  be  re- 
quired, within  a  period  of  five  years. 

5.  Upon  the  conclusion  of  the  examinations  the  names  of  the  candi- 
dates who  shall  have  attained  upon  the  whole  examination  an  average 
mark  of  at  least  eighty,  as  required  by  the  Executive  order,  will  be 
certified  by  the  Board  to  the  Secretary  of  State  as  eligible  for  appoint- 
ment in  the  consular  service,  and  the  successful  candidates  will  be  in- 
formed that  this  has  been  done. 

6.  The  names  of  candidates  will  remain  on  the  eligible  list  for  two 
years,  except  in  the  case  of  such  candidates  as  shall  within  that  period 
be  appointed  or  shall  withdraw  their  names.    Names  which  have  been 
on  the  eligible  list  for  two  years  will  be  dropped  therefrom  and  the 
candidates  concerned  will  not  again  be  eligible  for  appointment  unless 
upon  fresh  application,  designation  anew  for  examination,  and  the  suc- 
cessful passing  of  such  second  examination. 

HUNTINGTON   WlLSON, 

Third  Assistant  Secretary  of  State. 
DEPARTMENT  OF  STATE, 

Washington,  December  13,  1906. 


AMERICAN  DIPLOMACY1 
BY  FRANCIS  C.  LOWELL 

AT  home  and  abroad  there  has  been  much  criticism  of  American  dip- 
lomatic representatives  as  compared  with  those  of  European  countries. 
It  is  often  said  that  our  men  are  much  inferior  to  their  expert  colleagues 
from  Europe,  and  we  are  urged  to  adopt  a  system  like  the  European, 
for  their  careful  training  and  due  promotion.  That  this  criticism  is 
valuable  can  not  be  denied.  The  extreme  unfitness  of  some  American 
envoys  has  discredited  us,  but  there  are  advantages  in  our  system,  or 
want  of  it,  which  we  ought  not  to  overlook.  In  considering  them  here, 
we  will  pass  over  the  consuls  and  limit  ourselves  to  the  regular  diplo- 
matic service. 

Let  us  take  a  concrete  case,  and  compare  the  American  representa- 
tives in  London  with  the  English  representatives  in  Washington.  Since 
1850  we  have  sent  to  England  Joseph  R.  Ingersoll,  James  Buchanan, 
George  M.  Dallas,  Charles  Francis  Adams,  Reverdy  Johnson,  J.  L. 

1  From  the  Atlantic  Monthly,  January,  1906.    Reprinted  by  permission.    Copyright. 


676  AMERICAN  FEDERAL   GOVERNMENT 

Motley,  R.  C.  Schenck,  Edwards  Pierrepont,  John  Welsh,  J.  R.  Lowell, 
Edward  J.  Phelps,  Robert  T.  Lincoln,  Thomas  F.  Bayard,  John  Hay, 
Joseph  H.  Choate,  and  Whitelaw  Reid.  The  English  have  sent  to  us 
Sir  Henry  Bulwer  (Lord  Balling),  J.  F.  T.  Crampton,  Lord  Napier, 
Lord  Lyons,  Sir  Frederick  Bruce,  Sir  Edward  Thornton,  L.  S.  Sackville 
West,  Lord  Pauncefote,  Sir  Michael  Herbert,  and  Sir  Mortimer  Durand. 
Without  dwelling  on  particular  names,  we  see  plainly  that  the  Ameri- 
cans have  been  the  more  distinguished  men.  The  English  representatives 
have  been  well  educated  and  trained,  and  have  tried  to  do  their  diplo- 
matic duty,  with  measurable  success.  No  one  of  them  at  any  time  or 
in  any  place  made  considerable  mark  of  any  sort  upon  the  history  of 
his  country  or  that  of  the  world.  No  one  held  important  office  outside 
the  diplomatic  service.  To  establish  an  accurate  standard  of  compari- 
son is  impossible.  Distinction  and  importance  can  not  be  weighed.  But 
of  the  Englishmen  we  may  say  that  hardly  one  was  of  English  cabinet 
rank,  that  is  to  say,  had  the  importance  which  usually  belongs  in  Eng- 
land to  a  cabinet  minister.  Among  the  sixteen  Americans  there  are 
found  one  president,  one  vice-president,  and  an  unsuccessful  nominee 
of  a  great  party  for  the  latter  office.  Five  served  in  our  small  cabinet: 
two  secretaries  of  state,  a  secretary  of  war,  and  two  attorneys-general; 
two  others  were  lawyers  at  the  head  of  their  profession,  one  was  a  his- 
torian, and  one  a  poet,  both  of  high  rank,  and  still  we  have  not  classified 
Mr.  Adams,  who  did  the  greatest  service  of  them  all.  The  difference 
in  the  lists  is  striking. 


Few  of  these  Americans  had  long  diplomatic  experience;  many  of 
them  served  with  little  or  none.  Hence  our  range  of  choice  has  been 
much  wider  than  that  of  those  countries  which  have  maintained  a  regular 
diplomatic  service.  Cabinet  ministers,  historians,  poets,  lawyers,  teach- 
ers, are  chosen  to  represent  the  United  States.  No  country  could  keep 
permanently  in  its  diplomatic  employ  so  large  a  number  of  its  leaders. 
There  would  not  be  enough  left  for  other  necessities.  The  American 
diplomat  is  a  man  of  distinction,  taken  from  public  life,  literature,  or 
the  bar,  from  a  large  business,  or  from  a  university,  and  set  to  a  job  for 
which  he  has  had  no  special  training.  The  typical  European  diplomat 
is  a  man  of  less  ability  and  less  general  distinction,  trained  to  a  profes- 
sion from  his  youth.  What  are  the  comparative  advantages  of  the  two 
systems  ? 

The  ordinary  functions  of  a  diplomat  are  matters  of  routine,  the  ob- 
servation of  proper  formalities  in  public  functions  and  in  his  official 
duties.  Herein  experience  tells.  Not  only  has  the  elaborate  etiquette 
of  courts  and  public  offices  become  second  nature  to  the  ambassador 
who  has  practiced  it  since  he  was  a  boy,  but,  apart  from  the  diplomatic 
career,  the  bringing  up  of  a  European  gentleman,  especially  of  a  Euro- 


THE  AMERICAN   FOREIGN   SERVICE  677 

pean  nobleman,  gives  him  the  start  of  his  American  colleague,  though 
the  latter  has  grown  up  in  the  best  society  of  New  York  or  Washington. 
But  important  negotiations  are  now  carried  on  by  foreign  secretaries, 
not  by  diplomats.  The  envoy  who  transmits  messages  between  them 
is  left  little  discretion.  That  he  should  have  good  manners  is  desirable, 
but  want  of  ability  and  lack  of  initiative  are  not  serious  drawbacks. 
Thus  far  the  European  diplomat  has  the  advantage.  Yet  emergencies 
may  arise  which  call  for  ability  in  the  diplomat  himself  as  well  as  in  his 
superior,  the  foreign  secretary.  There  the  European  is  at  a  disadvan- 
tage. His  whole  life  has  been  given  to  the  study  of  routine,  until  his 
initiative  is  gone.  The  American's  ignorance  of  routine  may  be  a  posi- 
tive help.  He  is  accustomed  to  emergencies  where  something  new  and 
unexpected  must  be  done.  Business,  politics,  the  law,  literature,  some- 
times call  for  originality. 

The  success  of  American  diplomacy  in  meeting  these  emergencies  is 
illustrated  by  the  career  of  Mr.  Washburne  as  minister  to  France.  He 
had  been  a  member  of  the  American  House  of  Representatives  and  an 
experienced  politician  of  Illinois,  with  little  knowledge  of  Europe  and 
almost  none  of  the  French  language.  His  diplomatic  rank  in  Paris  was 
low.  Nuncio,  ambassadors,  some  ministers  plenipotentiary,  outranked 
him.  The  United  States  then  had  little  reputation  in  Europe.  But 
when  the  political  revolution  which  followed  the  battle  of  Sedan  per- 
plexed European  diplomats,  Mr.  Washburne  made  it  his  business  to  do 
the  work  which  lay  next  his  hand,  and  he  found  a  good  deal  of  it.  Within 
a  few  weeks  the  envoy  who  had  stood  near  the  bottom  of  the  list  was 
become  in  effect  the  first  diplomatic  representative  in  France.  How 
much  credit  for  the  gain  was  due  to  our  Secretary  of  State,  Mr.  Fish, 
and  how  much  to  Mr.  Washburne,  is  not  known,  but  much  was  due  to 
the  latter.  His  protection  of  the  Germans  was  efficient  before  and  dur- 
ing the  siege.  When  the  French  government  moved  to  Versailles  in 
consequence  of  the  outbreak  of  the  Commune,  Mr.  Washburne  formally 
established  his  legation  there,  but  spent  most  of  his  time  in  Paris.  He 
was  helped  by  his  extraordinary  courage,  no  doubt,  but  courage  is  not 
a  rare  virtue.  His  common  sense,  leading  him  to  disregard  diplomatic 
traditions,  contributed  more  than  his  courage  to  his  success.  Thus  he 
was  able  to  save  some  proposed  victims  from  the  Commune,  and  to 
comfort  in  prison  the  Archbishop  of  Paris,  though  he  could  not  save 
him.  Much  of  his  action  was  irregular,  and  his  establishment  in  Paris 
was  criticized.  Thus  he  wrote:  " This  action,  it  must  be  admitted,  was 
not  entirely  acceptable  to  the  government  at  Versailles,  and  it  was  com- 
municated to  me,  as  coming  unofficially  from  that  government,  that  it 
would  have  been  better  for  me  to  have  joined  all  my  diplomatic  colleagues 
at  Versailles,  and  not  to  have  kept  up  any  legation  whatever  in  Paris. 
My  answer  to  all  this  was  that,  while  I  desired  to  be  as  agreeable  as  pos- 
sible to  the  government  at  Versailles,  and  not  to  be  wanting  in  my  loyalty 


678  AMERICAN  FEDERAL   GOVERNMENT 

to  it,  as  minister  of  the  United  States,  in  any  respect,  yet  that  there  were 
vast  interests  with  which  I  was  charged  at  Paris,  and,  however  disagree- 
able it  might  be  to  remain  there,  I  owed  a  greater  duty  to  the  interests 
with  which  I  was  charged  than  I  did  to  the  mere  etiquette  which  would 
have  required  me  to  remain  in  Versailles." 

That  some  disregard  of  diplomatic  traditions  on  his  part  does  not 
always  discredit  a  diplomatic  representative  is  proved  by  Mr.  Wash- 
burne's  experience.  He  had  aided  and  protected  the  Germans.  In  this 
way  he  had  obtained  the  gratitude  of  Germany ;  but  the  Germans  were 
unpopular  in  France.  He  had  dealt  with  the  leaders  of  the  Commune, 
some  of  them  vile  criminals  as  well  as  armed  rebels.  If  his  acts  had 
strained  our  relations  with  France,  his  successes  would  have  been  dearly 
bought.  But  his  tact  and  common  sense  conciliated  France.  Momentary 
irritation  soon  disappeared.  The  French  ministers  of  foreign  affairs  were 
persons  too  considerable  not  to  admire  beneficent  ability,  even  if  its 
methods  were  unusual.  Mr.  Washburne's  habit  of  dealing  with  men  of 
all  sorts  as  a  man  of  business,  not  much  troubled  by  the  formalities  of 
diplomatic  etiquette,  pleased  every  one.  He  earned  the  gratitude  of  the 
Germans,  while  keeping  French  good  will.  His  conduct  improved  our 
position  in  Europe.  At  the  other  side  of  the  world,  nearly  thirty  years 
later,  America  was  represented  in  China  by  Mr.  Conger,  an  American 
politician  of  secondary  importance,  who  had  little  knowledge  of  China 
and  no  diplomatic  experience.  An  emergency  arose,  not  provided  for 
in  the  rules  of  diplomatic  etiquette.  While  Mr.  Conger's  achievements 
in  the  Boxer  troubles  were  not  so  great  as  Mr.  Washburne's  in  France, 
yet  it  is  understood  that  he  was  rather  more  than  the  equal  of  his  trained 
brethren  from  England  and  the  continent  of  Europe.  We  have  just 
achieved  diplomatic  success  in  Russia,  having  disregarded  diplomatic 
tradition  so  completely  that  our  ignominious  failure  was  generally  pre- 
dicted. This  was  the  achievement  of  a  president  with  neither  diplomatic 
training  nor  a  foreign  secretary,  speaking  through  an  ambassador  trained 
in  business  and  politics. 

Emergencies  like  these  are  infrequent,  it  is  true,  and  the  close  observ- 
ance of  due  formalities  is  called  for  every  day.  Granted  that  Mr.  Wash- 
burne's success  was  brilliant,  yet  such  instances  are  necessarily  rare 
and  have  grown  rarer.  If  our  representatives  in  England,  France,  and 
Germany,  can  to-day  do  not  more  than  observe  diplomatic  traditions, 
keep  posted  in  the  gossip  of  the  capital,  and  avoid  the  little  blunders 
upon  which  their  colleagues,  their  colleagues'  wives,  and  other  persons 
of  fashion  like  to  dwell,  then  perhaps  we  may  admit  that  emergencies 
may  be  left  to  take  care  of  themselves,  and  that  a  trained  diplomat  may 
be  most  to  our  advantage.  But  some  of  our  representatives,  as  it  seems 
to  me,  have  pointed  out  a  new  function  for  the  diplomat  which  is  of  real 
benefit  to  his  own  country  and  to  that  which  he  visits. 

An  Englishman  wrote  at  the  time  of  Mr.  Choate's  departure:    "In- 


THE  AMERICAN   FOREIGN   SERVICE  679 

stinctively  we  separate  the  American  Ambassador  from  all  his  colleagues 
in  the  Diplomatic  Corps.  He  is  the  only  one  who  really  reaches  the 
masses.  He  is  the  only  one  in  whom  the  people,  as  a  whole,  have  any 
interest.  Of  him  alone  it  is  expected  that  he  will  be  less  of  an  official 
and  more  of  a  man.  One  never  hears  of  the  Russian  or  German  Ambas- 
sador being  asked  to  lecture  before  a  philosophical  or  historical  society, 
or  invited  to  a  literary  dinner.  They  and  their  colleagues  are  permitted 
to  stand  outside  all  but  a  fraction  of  the  national  life.  They  may  en- 
trench themselves  behind  the  ramparts  of  society  and  officialdom,  and 
none  will  seek  to  drag  them  forth.  The  public  at  large  knows  nothing  of 
them,  and  does  not  care  to  know  anything.  They  are  what  the  American 
Ambassador  never  is,  —  they  are  foreigners,  and  treated  as  such.  We 
surrender  them  cheerfully  to  Downing-Street,  the  Court,  and  the  West 
End.  .  .  .  We  never  really  give  the  poor  man  a  moment's  rest.  We 
might  almost  be  accused  of  trying  to  kill  him  with  kindness/  Even 
before  he  lands  on  English  soil  he  is  pounced  upon  by  the  Mayor  and 
Corporation  of  Southampton,  an  address  of  welcome  fired  at  him  on 
shipboard,  and  a  speech  extorted  from  him  in  reply.  And  that  is  but 
a  foretaste  of  what  is  to  come.  .  .  .  But  as  it  is,  no  sooner  has  he  pre- 
sented his  credentials  than  the  bombardment  begins.  I  must  admit  at 
once  it  is  most  vigorously  replied  to.  England  and  the  American  Am- 
bassador set  to  forthwith  to  see  which  can  spoil  the  other  the  most. 
Chambers  of  Commerce  swoop  down  upon  him  and  bear  him  off  in 
triumph  as  their  guest  of  honour.  The  Omar  Khayyam  Club  points 
an  invitation  at  this  head,  demanding  unconditional  surrender.  The 
Dante  Society  insists  on  his  escorting  its  members  through  the  infernal 
regions.  The  Wordsworth  Society,  the  Browning  Society,  the  Boz  Club, 
the  Sir  Walter  Scott  Club,  —  all  press  their  claims.  The  Birmingham 
and  Midland  Institute  insidiously  elects  him  as  its  annual  president, 
and  exacts  by  way  of  tribute  an  address  on  Benjamin  Franklin.  The 
Edinburgh  Philosophical  Institution  bestows  the  same  honor  for  the 
price  of  a  paper  on  Abraham  .Lincoln.  And  so  it  goes  on.  The  big 
public  schools,  knowing  that  he  is  an  American,  and  therefore  wrapped 
up  in  education,  play  upon  his  weakness  and  lure  him  into  distributing 
their  prizes.  Political  leagues  expect  him  to  tell  them  all  about  the 
United  States  Supreme  Court.  The  historic  City  companies  never  once 
let  go  of  him.  He  is  a  standing  feature  on  the  toast-list  of  the  Guildhall 
banquet.  Charitable  and  philanthropic  societies  pursue  him  relentlessly. 
Working  men's  institutes,  trading  on  his  democratic  sympathies,  bid 
for  an  evening's  loan  of  his  presence  and  voice.  Libraries  refuse  to  be 
opened  except  by  him.  He  is  the  obvious  man  to  unveil  a  bust  or  a 
portrait.  The  organizers  of  a  dinner  in  honor  of  a  famous  English 
cartoonist  turn  to  the  American  Embassy  for  the  orator  of  the  occasion. 
After  all,  I  suppose  it  is  partly  America's  own  fault.  She  should  not 
send  us  such  charming,  cultivated,  broad-gauged  men.  Adams,  Lowell, 


680  AMERICAN  FEDERAL   GOVERNMENT 

Phelps,  Bayard,  Hay,  and  -Choate,  —  what  other  country  has  sent  us 
representatives  to  compare  with  them?  The  capacity  of  a  long  line  of 
American  Ambassadors  to  warm  both  hands  at  the  cheerful  fire  of 
English  existence  has  been  so  palpable,  their  interests  have  been  so 
manifestly  stretched  beyond  the  humdrum  game  of  protocols  and  de- 
spatches, they  touch  life  at  so  many  more  points  than  the  ordinary 
professional  diplomat,  that  we  should  hardly  know  what  to  do  if  the 
United  States  accredited  to  the  Court  of  St.  James  anyone  short  of  her 
best.  A  tongue-tied,  unsociable,  purely  official  American  Ambassador 
has  become  unthinkable  to  this  country.  We  calmly  take  it  for  granted 
that  the  representative  of  the  United  States,  whoever  he  may  be,  will 
be  a  first-class  after-dinner  speaker,  and  able  and  willing  at  any  time  to 
deliver  an  address,  preside  at  a  meeting,  or  unveil  a  monument.  And  so 
he  invariably  is.  Why,  then,  should  we  not  use  him  for  our  profit  and 
entertainment  ?  " 

The  suggestion  thus  conveyed  is  valuable,  now  that  our  ambassadors 
are  in  hourly  connection  with  Washington,  and  have  become  little  more 
than  messengers  and  clerks  in  their  ordinary  work.  May  they  not  be 
employed  in  acquainting  people  of  one  nation  with  the  people  of  another  ? 
For  this  purpose  miscellaneous  ability  is  more  effective  than  training. 
After  he  had  become  famous,  Thackeray  sought  appointment  as  secretary 
of  legation  at  Washington.  The  place  was  refused  him  because  it  had 
been  promised  to  some  one  else,  and  also  because  some  budding  diplo- 
mat was  deemed  fairly  entitled  to  it.  We  make  ambassadors  of  men 
like  Thackeray.  To  compare  with  him  J.  F.  T.  Cramp  ton,  Esq.,  at 
about  that  time  British  minister  to  Washington,  seems  to  us  absurd. 

It  is  said  that  training  is  needed  to  avoid  the  blunders  often  com- 
mitted by  men  who  are  unacquainted  with  the  ways  of  courts.  This 
is  obvious,  but  how  important  are  these  blunders,  after  all  ?  They  give 
rise  to  the  gossip  common  in  the  diplomatic  circles  of  Pumpernickel  and 
elsewhere,  but,  except  in  Pumpernickel,  do  the  people  of  importance 
really  care?  Those  who  govern  great  states,  be  they  sovereigns  or 
ministers,  are  interested  to  find  intelligence  and  capacity  anywhere. 
They  leave  questions  of  precedence  and  clothes  for  the  most  part  to 
their  chamberlains  and  valets. 

We  have  been  successful  in  interesting  the  English  people  in  our 
ambassadors,  and  their  official  position  has  not  been  much  damaged 
by  this  interest.  We  have  profited  by  the  transaction,  and  this  profit 
would  have  been  impossible  had  we  sent  trained  diplomats  to  London. 
In  less  degree  we  have  profited  elsewhere.  We  have  certain  advantages 
in  supplying  representatives  of  this  sort,  besides  natural  American  adapt- 
ability. We  draw  from  all  the  nations  of  Europe,  and  ought  not  to  be 
strangers  to  any  of  them.  Some  of  them  are  ripe  for  an  ambassador 
who  will  talk  to  the  people  or  to  large  classes  of  the  people  as  our  repre- 
sentatives have  talked  to  the  people  of  England  for  a  generation.  That 


THE   AMERICAN   FOREIGN   SERVICE  681 

one  of  our  ambassadors  appeals  especially  to  men  of  letters,  another  to 
men  of  business,  a  third  to  men  in  public  life,  and  still  a  fourth  to  teach- 
ers, but  adds  variety  to  the  general  interest  aroused  by  the  succession.  In 
these  latter  days  the  people  of  one  country  are  becoming  curious  about 
the  people  of  another.  International  friendship  and  international  toler- 
ance, both  important  in  their  place,  are  advanced  by  international  knowl- 
edge. The  exchange  of  professors  between  our  universities  and  those 
of  continental  Europe  illustrates  this  growing  interest  of  one  people  in 
another.  Professor  Wendell,  lecturing  last  year  in  the  provinces  as  well 
as  in  Paris,  owed  his  welcome  to  his  nationality  as  well  as  to  his  learn- 
ing and  literary  skill.  This  year  in  Germany  Professor  Peabody  has 
similar  greeting  from  the  Germans,  and  both  will  leave  behind  them 
sound  knowledge  and  good  feeling  which  the  publication  of  their  written 
lectures  could  not  have  effected.  To  expect  our  ambassador  to  open 
museums  and  to  lecture  on  politics  and  literature  seems,  at  first  sight,  to 
be  asking  him  to  go  outside  his  vocation;  but  does  not  our  English 
experience  prove  that  the  service  he  thus  renders  is  in  itself  important, 
and  that  it  does  not  interfere  with  duties  more  strictly  diplomatic  ?  Let 
us  suppose,  for  example,  that  President  Roosevelt,  when  he  leaves  his 
office,  were  sent  to  represent  us  for  a  while  in  some  continental  country. 
The  people  of  that  country  would  be  immensely  interested  to  see  him 
and  hear  him.  Seeing  and  hearing  him,  they  would  be  interested  in  us, 
and  would  learn  to  know  us  better.  With  increased  knowledge,  they 
would  lose  some  misconceptions  and  prejudices,  and  thus  we  should 
profit  by  our  representative.  That  the  President  is  not  a  trained  diplo- 
mat is  unimportant.  It  may  well  be  that  we  can  employ  him  more 
profitably  than  as  an  ambassador,  but  the  suggestion  explains  my 
meaning. 

Illustration  may  be  found  also  in  the  diplomacy  of  other  countries.  In 
the  Boxer  troubles  of  1900,  China  owed  much  to  her  envoy  in  this  country. 
No  doubt  he  discharged  his  diplomatic  duty  at  Washington,  but  he  did 
much  more.  In  the  face  of  the  American  people,  he  maintained  the 
Chinese  cause  under  extraordinary  difficulties.  We  did  not  altogether 
believe  what  he  said,  but  'we  were  forced  to  hear  him.  He  interested  us, 
and,  even  against  our  will,  made  us  feel  human  kinship  with  his  people, 
while  he  showed  such  knowledge  of  ours. 

A  trained  diplomat,  indeed,  can  be  of  service  to  a  lawyer,  or  poet,  or 
college  president,  sent  to  represent  us  at  a  European  court.  If  the 
secretary  of  legation  will  attend  to  the  routine  of  the  office  and  will 
coach  the  ambassador  in  the  details  of  behavior  and  dress,  the  latter 
can  attend  to  serious  matters  with  more  leisure  and  effect.  But  to  carry 
out  this  plan,  the  promotion  of  our  regularly  trained  diplomats  must 
stop  short  of  the  highest  places  in  our  diplomatic  service,  and  it  is  doubt- 
ful if  reasonably  intelligent  young  men  will  be  attracted  to  a  service  in 
which  they  must  remain  subordinates.  No  professional  training,  how- 


682  AMERICAN  FEDERAL   GOVERNMENT 

ever  well  directed,  no  experience,  however  extensive,  will  produce  men 
to  compare  in  general  ability  and  distinction  with  our  representatives 
in  England,  chosen  almost  at  haphazard,  during  the  last  fifty  years. 

In  the  matter  of  payment,  we  touch  upon  one  of  our  most  serious 
difficulties.  The  salaries  now  paid  are  too  low,  especially  for  married 
men  with  considerable  families.  Private  means  are  now  needed  to  sup- 
plement the  official  salary,  and  so  we  are  coming  to  appoint  as  ambassa- 
dors only  those  men  whose  private  means  are  large.  This  may  not  be 
absolutely  necessary.  Mr.  Roosevelt  or  Mr.  Hay  might  live  in  London 
on  $17,500  a  year  without  loss  of  prestige,  but  it  takes  great  distinction 
to  make  so  little  money  go  so  far.  We  can  not  expect  to  get  it  in  every 
case.  As  things  go,  the  salary  is  not  ordinarily  large  enough  to  enable 
our  representative  to  live  like  his  diplomatic  colleagues.  Therefore  we 
appoint  rich  men  ambassadors,  to  eke  out  the  salary  from  their  private 
wealth.  Not  only  do  they  do  this,  but  they  outspend  their  colleagues  so 
lavishly,  that  soon  the  merely  rich  man  will  be  embarrassed  by  the  ex- 
travagance of  his  predecessor.  To  curtail  expense,  especially  for  an 
American,  is  difficult.  Yet  the  inability  to  live  on  his  official  salary 
ought  not  to  lead  an  ambassador  to  spend  ten  times  that  amount.  No 
nation  can  pay  a  salary  like  that.  No  nation  ought  to  do  so.  But  few 
men  have  that  amount  of  money  to  spend,  and  not  all  the  members  of 
the  small  class  of  the  very  rich  have  the  distinction  which  we  ought  to 
find  in  our  foreign  representatives.  To  limit  our  choice  to  multi-million- 
aires would  be  in  every  way  unfortunate.  If  an  ambassador's  expenses 
are  very  large,  whether  he  can  afford  them  or  not,  he  makes  it  harder 
for  his  successor  to  practice  economy.  To  determine  what  an  ambas- 
sador ought  to  spend  in  one  place  or  another  may  not  be  easy,  but  we 
should  make  the  best  guess  possible,  fix  the  salary  accordingly,  and 
intimate  strongly  and  officially  to  our  representatives  that  their  style 
of  living  should  correspond. 


XIII 
CIVIL   SERVICE 

FROM  THE   FIRST  ANNUAL  MESSAGE   OF  PRESIDENT 
HARRISON,    1889 

ON  the  4th  of  March  last  the  Civil  Service  Commission  had  but  a 
single  member.  The  vacancies  were  filled  on  the  yth  day  of  May,  and 
since  then  the  Commissioners  have  been  industriously,  though  with  an 
inadequate  force,  engaged  in  executing  the  law.  They  were  assured  by 
me  that  a  cordial  support  would  be  given  them  in  the  faithful  and  im- 
partial enforcement  of  the  statute  and  of  the  rules  and  regulations  adopted 
in  aid  of  it. 

Heretofore  the  book  of  eligibles  has  been  closed  to  everyone,  except  as 
certifications  were  made  upon  the  requisition  of  the  appointing  officers. 
This  secrecy  was  the  source  of  much  suspicion  and  of  many  charges 
of  favoritism  in  the  administration  of  the  law.  What  is  secret  is  always 
suspected ;  what  is  open  can  be  judged.  The  Commission,  with  the  full 
approval  of  all  its  members,  has  now  opened  the  list  of  eligibles  to  the 
public.  The  eligible  lists  for  the  classified  post  offices  and  custom-houses 
are  now  publicly  posted  in  the  respective  offices,  as  are  also  the  certifica- 
tions for  appointments.  The  purpose  of  the  civil-service  law  was 
absolutely  to  exclude  any  other  consideration  in  connection  with  appoint- 
ments under  it  than  that  of  merit  as  tested  by  the  examinations.  The 
business  proceeds  upon  the  theory  that  both  the  examining  boards  and 
the  appointing  officers  are  absolutely  ignorant  as  to  the  political  views 
and  associations  of  all  persons  on  the  civil-service  lists.  It  is  not  too 
much  to  say,  however,  that  some  recent  Congressional  investigations 
have  somewhat  shaken  public  confidence  in  the  impartiality  of  the  selec- 
tions for  appointment. 

The  reform  of  the  civil  service  will  make  no  safe  or  satisfactory  ad- 
vance until  the  present  law  and  its  equal  administration  are  well  estab- 
lished in  the  confidence  of  the  people.  It  will  be  my  pleasure,  as  it  is 
my  duty,  to  see  that  the  law  is  executed  with  firmness  and  impartiality. 
If  some  of  its  provisions  have  been  fraudulently  evaded  by  appointing 
officers,  our  resentment  should  not  suggest  the  repeal  of  the  law,  but 
reform  in  its  administration.  We  should  have  one  view  of  the  matter, 

683 


684  AMERICAN  FEDERAL   GOVERNMENT 

and  hold  it  with  a  sincerity  that  is  not  affected  by  the  consideration  that 
the  party  to  which  we  belong  is  for  the  time  in  power. 

My  predecessor,  on  the  4th  day  of  January,  1889,  by  an  Executive 
order  to  take  effect  March  15,  brought  the  Railway  Mail  Service  under 
the  operation  of  the  civil-service  law.  Provision  was  made  that  the 
order  should  take  effect  sooner  in  any  state  where  an  eligible  list  was 
sooner  obtained.  On  the  nth  day  of  March  Mr.  Lyman,  then  the  only 
member  of  the  Commission,  reported  to  me  in  writing  that  it  would  not 
be  possible  to  have  the  list  of  eligibles  ready  before  May  ist,  and  requested 
that  the  taking  effect  of  the  order  be  postponed  until  that  time,  which 
was  done,  subject  to  the  same  provision  contained  in  the  original  order 
as  to  States  in  which  an  eligible  list  was  sooner  obtained. 

As  a  result  of  the  revision  of  the  rules,  of  the  new  classification,  and 
of  the  inclusion  of  the  Railway  Mail  Service,  the  work  of  the  Commis- 
sion has  been  greatly  increased,  and  the  present  clerical  force  is  found 
to  be  inadequate.  I  recommend  that  the  additional  clerks  asked  by  the 
Commission  be  appropriated  for. 

The  duty  of  appointment  is  devolved  by  the  Constitution  or  by  the 
law  and  the  appointing  officers  are  properly  held  to  a  high  responsibility 
in  its  exercise.  The  growth  of  the  country  and  the  consequent  increase 
of  the  civil  list  have  magnified  this  function  of  the  Executive  dispropor- 
tionately. It  can  not  be  denied,  however,  that  the  labor  connected  with 
this  necessary  work  is  increased,  often  to  the  point  of  actual  distress,  by 
the  sudden  and  excessive  demands  that  are  made  upon  an  incoming 
Administration  for  removals  and  appointments.  But,  on  the  other  hand, 
it  is  not  true  that  incumbency  is  a  conclusive  argument  for  continuance 
in  office.  Impartiality,  moderation,  fidelity  to  public  duty,  and  a  good 
attainment  in  the  discharge  of  it  must  be  added  before  the  argument  is 
complete.  When  those  holding  administrative  offices  so  conduct  them- 
selves as  to  convince  just  political  opponents  that  no  party  consideration 
or  bias  affects  in  any  way  the  discharge  of  their  public  duties,  we  can 
more  easily  stay  the  demand  for  removals. 

I  am  satisfied  that  both  in  and  out  of  the  classified  service  great  benefit 
would  accrue  from  the  adoption  of  some  system  by  which  the  officer 
would  receive  the  distinction  and  benefit  that  in  all  private  employments 
comes  from  exceptional  faithfulness  and  efficiency  in  the  performance 
of  duty. 

I  have  suggested  to  the  heads  of  the  Executive  Departments  that  they 
consider  whether  a  record  might  not  be  kept  in  each  bureau  of  all  those 
elements  that  are  covered  by  the  terms  "faithfulness"  and  "efficiency," 
and  a  rating  made  showing  the  relative  merits  of  the  clerks  of  each  class, 
this  rating  to  be  regarded  as  a  test  of  merit  in  making  promotions. 

I  have  also  suggested  to  the  Postmaster- General  that  he  adopt  some 
plan  by  which  he  can,  upon  the  basis  of  the  reports  to  the  Department 
and  of  frequent  inspections,  indicate  the  relative  merits  of  postmasters 


CIVIL   SERVICE  685 

of  each  class.  They  will  be  appropriately  indicated  in  the  Official  Reg- 
ister and  in  the  report  of  the  Department.  That  a  great  stimulus  would 
thus  be  given  to  the  whole  service  I  do  not  doubt,  and  such  a  record 
would  be  the  best  defense  against  inconsiderate  removals  from  office. 


FROM  THE   FOURTH  ANNUAL  MESSAGE   OF   PRESI- 
DENT  CLEVELAND,    1896 

THE  progress  made  in  civil-service  reform  furnishes  a  cause  for  the 
utmost  congratulation.  It  has  survived  the  doubts  of  its  friends  as  well 
as  the  rancour  of  its  enemies  and  has  gained  a  permanent  place  among 
the  agencies  destined  to  cleanse  our  politics  and  to  improve,  economize, 
and  elevate  the  public  service. 

There  are  now  in  the  competitive  service  upward  of  84,000  places, 
more  than  half  of  these  having  been  included  from  time  to  time  since 
March  4th,  1893.  A  most  radical  and  sweeping  extension  was  made  by 
Executive  order  dated  the  6th  day  of  May,  1896,  and  if  fourth-class 
postmasterships  are  not  included  in  the  statement  it  may  be  said  that 
practically  all  positions  contemplated  by  the  civil-service  law  are  now 
classified.  Abundant  reasons  exist  for  including  these  postmasterships, 
based  upon  economy,  improved  service,  and  the  peace  and  quiet  of  neigh- 
borhoods. If,  however,  obstacles  prevent  such  action  at  present,  I 
earnestly  hope  that  Congress  will,  without  increasing  post-office  appropri- 
ations, so  adjust  them  as  to  admit  in  proper  cases  a  consolidation  of  these 
post  offices,  to  the  end  that  through  this  process  the  result  desired  may 
to  a  limited  extent  be  accomplished. 

The  civil-service  rules  as  amended  during  the  last  year  provide  for  a 
sensible  and  uniform  method  of  promotion,  basing  eligibility  to  better 
positions  upon  demonstrated  efficiency  and  faithfulness.  The  absence 
of  fixed  rules  on  this  subject  has  been  an  infirmity  in  the  system  more 
and  more  apparent  as  its  other  benefits  have  been  better  appreciated. 

The  advantages  of  civil-service  methods  in  their  business  aspects  are 
too  well  understood  to  require  argument.  Their  application  has  become 
a  necessity  to  the  executive  work  of  the  Government.  But  those  who 
gain  positions  through  the  operation  of  these  methods  should  be  made 
to  understand  that  the  non-partisan  scheme  through  which  they  receive 
their  appointments  demands  from  them  by  way  of  reciprocity  non- 
partisan  and  faithful  performance  of  duty  under  every  Administration 
and  cheerful  fidelity  to  every  chief.  While  they  should  be  encouraged 
to  decently  exercise  their  rights  of  citizenship  and  to  support  through 
their  suffrages  the  political  beliefs  they  honestly  profess,  the  noisy,  pesti- 
lent and  partisan  employee,  who  loves  political  turmoil  and  contention 
or  who  renders  lax  and  grudging  service  to  an  Administration  not  repre- 


686  AMERICAN   FEDERAL   GOVERNMENT 

senting  his  political  views,  should  be  promptly  and  fearlessly  dealt  with 
in  such  a  way  as  to  furnish  a  warning  to  others  who  may  be  likewise 
disposed. 


THE   CIVIL  SERVICE  UNDER   ROOSEVELT1 
BY  WILLIAM  B.  SHAW 

THE  President  of  the  United  States,  as  every  one  knows  who  has  read 
the  Constitution  of  his  country,  is  commander-in-chief  of  the  army  and 
navy.  He  is  also  the  head  of  an  organized  body  of  civil  servants,  far 
outnumbering  our  standing  military  and  naval  forces,  —  a  body  un- 
known to  the  Constitution,  since  the  very  possibility  of  its  existence 
was  undreamed  of  by  the  fathers  of  the  republic.  There  are  about  two 
hundred  and  eighty  thousand  of  these  men  and  women  who  toil  daily 
in  Uncle  Sam's  vineyard,  and  they  are  as  truly  the  nation's  servants  as 
are  the  soldiers  and  sailors  who  fight  its  battles.  Among  them  are 
some  whose  lives  are  by  no  means  lacking  in  the  heroic,  —  some  whose 
devotion  to  duty  is  not  less  noble  because  their  service  has  been  rendered 
without  trumpet-and-drum  accompaniment. 

A  CIVIL-SERVICE  PRESIDENT 

It  is  no  disparagement  of  the  military  arm  to  the  Government  to  ac- 
knowledge that  without  the  civil  arm  it  would  be  powerless,  and  especially 
in  a  democracy  like  ours  it  would  seem  to  be  almost  an  axiom  of  success- 
ful administration  that  the  executive  civil  service  should  be  as  thoroughly 
organized  and  trained  to  as  high  a  degree  of  efficiency  as  the  military 
or  naval  service.  Yet  it  is  only  a  short  span  of  years  since  this  truth 
began  to  be  recognized  by  our  government  as  a  principle  of  conduct. 
Men  who  are  hardly  gray  can  recall  the  time  when  practically  every 
salaried  position  on  the  Government's  roster,  from  the  department 
secretaryships  down  to  the  jobs  of  the  messengers  and  charwomen  in 
the  corridors  of  the  big  Washington  office  buildings,  was  regarded  as  the 
legitimate  loot  of  the  place-hunter.  In  those  days  men  were  not  esteemed 
for  what  they  knew  about  the  Government's  work.  It  was  not  deemed 
necessary  that  a  President  should  be  familiar  with  the  affairs  of  one  or 
more  of  the  executive  departments.  How  many  Presidents  have  entered 
office  with  any  personal  knowledge  whatever  of  departmental  business  ? 
For  our  Presidents  we  chose  military  heroes,  Congressmen,  or  "favorite 
sons  "  of  States,  —  never  men  experienced  in  the  actual  executive  business 
at  Washington.  The  fact  is,  that  Theodore  Roosevelt  is  the  first  occu- 
pant of  the  Presidential  chair  who  has  come  to  the  office  equipped  with 
intimate  knowledge,  based  on  personal  experience,  of  the  practical  work- 
1  Review  of  Reviews,  March,  1905.  Reprinted  by  permission. 


CIVIL  SERVICE  687 

ings  of  the  great  governmental  machine.  Some  of  the  best  years  of  his 
life  had  been  given  to  the  cause  of  civil-service  reform,  —  not  as  an  agi- 
tator on  the  outside,  but  as  a  practical  administrator  on  the  inside,  hold- 
ing the  important  post  of  president  of  the  Civil  Service  Commission, 
facing  grave  problems  of  organization  and  method,  of  which  the  doctri- 
naire reformer  had  little  conception,  and  gaining  through  it  all  an 
experience  that  has  proved  a  valuable  asset  in  the  still  broader  respon- 
sibilities of  the  Presidency.  That  experience,  supplemented  as  it  was  by 
his  term  of  office  as  Assistant  Secretary  of  the  Navy,  familiarized  Mr. 
Roosevelt  with  the  routine  of  executive  business,  so  that  now,  as  the 
head  of  the  whole  governmental  system,  his  relation  to  the  personnel 
may  be  likened  to  that  sustained  by  an  army's  commander  to  the  sub- 
ordinate officers  in  successive  gradations  of  rank  through  which  he  has 
himself  risen. 

It  is  only  natural,  then,  that  those  who  are  working  for  the  improve- 
ment of  the  national  civil  service  should  count  on  the  Roosevelt  ad- 
ministration as  an  active  and  vigilant  ally.  We  have  a  President  in 
office  who  knows  as  well  as  a  man  in  his  position  can  know  what  the 
system  is  and  how  it  works,  —  its  merits  and  its  defects.  Its  problems 
and  its  difficulties  he  has  made  his  own.  He  has  had  a  hand  in  reform- 
ing its  abuses,  and  more  than  once  he  has  come  to  its  defense  when  it 
was  set  upon  by  powerful  enemies.  Perhaps  the  inauguration  of  a  "civil- 
service  President"  marks  an  appropriate  time  for  a  rapid  survey  of  the 
conditions  under  which  the  government's  work  is  performed  by  its  army 
of  civil  servants.  Changes  more  far-reaching,  possibly,  than  the  American 
public  suspects,  have  within  a  few  years  so  transformed  those  con- 
ditions that  government  employment  in  Washington  and  elsewhere  now 
presents  wholly  new  phases.  Moreover,  most  of  the  discussion  of  the 
subject  heretofore  has  been  confined  to  the  political  or  theoretical  aspects 
of  the  situation,  to  the  neglect  of  certain  more  concretely  human  aspects. 

THE  CHANGES  OF  TWENTY  YEARS 

When  Mr.  James  Bryce  wrote  "The  American  Commonwealth"  he 
did  not  think  it  worth  while  to  include  a  chapter  on  the  public  service, 
as  he  would  almost  certainly  have  done  in  writing  a  similar  treatise  on 
any  of  the  European  states ;  but  it  is  not  recalled  that  anybody  noticed 
the  omission.  The  truth  is,  that  twenty  years  ago  in  this  country,  gov- 
ernmental employment,  with  a  few  exceptional  instances,  was  anything 
but  a  dignified  calling.  It  offered  few  attractions  to  the  educated  youth 
of  the  land.  Its  rewards  were  transitory  at  best.  Every  official's  for- 
tunes, however  humble,  depended  on  the  coming  and  going  of  Presidents, 
Senators,  and  Representatives.  To  the  great  body  of  our  citizenship, 
the  whole  business  signified  nothing  more  than  a  mad  scramble,  every 
four  years,  for  place  and  pelt.  The  Government  had  not  impressed  the 


688  AMERICAN   FEDERAL   GOVERNMENT 

national  imagination  by  its  undertakings.  Little  was  known  of  the 
official  routine.  Every  job  at  Washington  was  believed  to  be  a  sinecure. 
Every  office-holder  was  regarded  as  a  spoilsman,  who  held  his  place 
only  by  the  favor  of  some  other  spoilsman.  Every  office-holder  was  regu- 
larly and  openly  assessed  a  considerable  part  of  his  salary  for  campaign 
expenses  at  every  election.  Moreover,  he  was  expected  to  neglect  his 
official  duties  at  election  time  and  devote  all  his  energies  to  election- 
eering for  his  party.  What  wonder  that  under  such  conditions  the 
maxim  that  " public  office  is  a  public  trust"  seemed  merely  an  empty 
platitude ! 

This  state  of  affairs  had  developed  gradually  during  the  first  century 
of  the  Republic's  life,  and  it  was  not  to  be  radically  altered  in  a  day. 
Some  of  the  attendant  evils  are  still  with  us.  Yet  it  requires  but  a  brief 
sojourn  at  the  national  capital  to  convince  one  that  the  general  situation, 
as  respects  office-holding  and  all  forms  of  public  employment,  is  very 
different  to-day  from  what  it  was,  for  example,  when  President  Garfield 
took  office  and  virtually  sacrificed  his  life  to  the  spoils  demon.  One  now 
finds  in  the  service  of  the  Government  hundreds  of  university-trained 
men  who  have  entered  on  avenues  of  advancement  in  the  public  service 
that  vie  in  attractiveness  with  academic  careers.  Furthermore,  thou- 
sands of  the  purely  clerical  positions  in  the  departments  are  filled  by  men 
and  women  who  in  training  and  equipment  for  their  duties  would  do 
credit  to  the  best-managed  business  houses  in  the  land. 

WHAT  THE  LAW  OF  1883  SOUGHT  TO  ACCOMPLISH 

An  inquirer  seeking  a  reason  for  this  transformation  (and  it  is  nothing 
less)  in  the  conditions  affecting  public  employment  in  Washington  and 
throughout  the  United  States,  will  be  told  that  the  chief  cause  is  to  be 
found  in  the  operation  of  the  Civil  Service  Act  of  1883,  known  for  some 
years  after  its  passage  as  the  Pendleton  Act,  in  recognition  of  the  fact 
that  it  was  fathered  by  the  venerable  Democratic  Senator  from  Ohio. 
The  passage  of  this  law  was  the  most  effective  blow  ever  dealt  at  the 
spoils  system  in  this  country.  Yet  its  immediate  results  gave  little  prom- 
ise of  the  increasing  potency  which  has  developed  with  each  successive 
administration  since  that  of  President  Arthur,  when  its  machinery  was 
set  in  motion.  In  brief,  the  law  provided  for  the  appointment  of  three 
commissioners,  not  more  than  two  of  whom  should  be  adherents  of  the 
same  political  party,  and  made  it  the  duty  of  the  commission  to  aid  the 
President  in  preparing  suitable  rules  for  the  government  of  the  civil 
service.  It  was  required  that  these  rules  should  provide,  among  other 
things,  for  open  competitive  examinations  for  testing  the  fitness  of  appli- 
cants for  the  classified  service ;  that  appointments  should  be  made  from 
among  those  passing  these  examinations  with  highest  grades ;  that  such 
appointments  should  be  apportioned  in  the  departments  at  Washington 


CIVIL   SERVICE  689 

among  the  States  and  Territories ;  that  there  should  be  an  appointment 
on  probation  before  absolute  appointment,  and  that  the  use  of  official 
authority  to  coerce  the  political  action  of  any  person  or  body  should  be 
absolutely  prohibited.  Provision  was  also  made  in  the  act  for  investi- 
gations touching  the  enforcement  of  the  rules,  and  a  penalty  of  fine  or 
imprisonment,  or  both,  was  imposed  for  the  solicitation  by  any  person 
in  the  service  of  the  United  States  of  contributions  to  be  used  for  political 
purposes  of  persons  in  such  service,  or  the  collection  of  such  contribu- 
tions by  any  person  in  any  government  building. 

THE  MEN  WHO  ENFORCED  THE  LAW 

Now,  as  we  look  back  to-day  upon  the  immediate  effects  of  the  early 
enforcement  of  this  law  in  the  administrations  of  President  Arthur  and 
President  Cleveland,  it  is  hard  to  understand  why  such  an  outcry  should 
have  been  made  about  it  at  the  time,  or  why  it  should  have  been  deemed 
so  revolutionary  in  principle.  Only  fourteen  thousand  places  were  at 
first  included  in  the  classified  service.  This  number  was  increased 
gradually  during  the  first  Cleveland  administration,  and  more  extensively 
in  the  Harrison  administration,  the  second  Cleveland  administration, 
and  the  administrations  of  Presidents  McKinley  and  Roosevelt,  until 
at  the  present  time  more  than  one-half  of  the  total  federal  civil  service 
of  the  country,  or,  to  be  exact,  154,093  positions,  are  classified  subject 
to  competitive  examination  under  the  civil-service  rules.  In  other  words, 
there  are  eleven  times  as  many  persons  who  now  owe  their  appointments 
in  the  civil  service  to  the  operation  of  competitive  tests  as  were  included 
within  the  scope  of  the  rules  when  the  commission  first  set  them  in  opera- 
tion. More  than  133,000  persons  were  examined  last  year,  of  whom 
103,718  passed,  and  50,830  received  appointments.  It  has  been  found 
necessary  to  divide  the  country  into  thirteen  districts  for  the  purpose  of 
conducting  examinations.  Such  an  increase  as  this  could  not  have  been 
achieved  had  not  the  system  itself,  and  its  administration  as  well,  com- 
mended themselves  to  Congress  and  to  the  heads  of  departments  at 
Washington.  An  indifferent  or  lukewarm  board  of  commissioners 
might  at  any  time  during  the  past  twenty-two  years  have  practically 
nullified  the  law  and  defeated  its  whole  purpose,  but  the  country  has 
been  fortunate  in  the  character  of  the  men  who  have  served  as  Civil 
Service  Commissioners.  Beginning  with  George  William  Curtis,  who 
declined  the  English  mission  in  order  to  take  the  presidency  of  the  first 
Civil  Service  Commission  in  Grant's  administration,  under  an  earlier 
law,  the  men  who  have  served  the  Government's  interests  in  this  impor- 
tant office  have  set  excellent  examples  of  patriotism  and  devotion  to  public 
duty.  The  Commission  has  had  Democratic  presidents  under  Repub- 
lican administrations  and  Republican  presidents  under  Democratic 
administrations.  Some  of  its  members  have  been  intense  partisans, 

44 


690  AMERICAN   FEDERAL   GOVERNMENT 

and  yet  no  charge  of  pernicious  political  activity  has  been  laid  at  the 
Commission's  door. 

During  President  Harrison's  administration,  and  in  the  first  half  of 
President  Cleveland's  second  administration,  the  president  of  the  com- 
mission was  Theodore  Roosevelt.  He  was  a  Northern  Republican,  and 
he  had  as  associates  on  the  commission  two  Southern  Democrats,  — 
ex-Gov.  Hugh  S.  Thompson,  of  South  Carolina,  and  the  late  John  R. 
Procter,  the  former  State  geologist  of  Kentucky.  Mr.  Roosevelt  has 
himself  said  of  his  associates,  both  of  whom  had  served  in  the  Confederate 
army,  that  "it  would  be  impossible  for  any  one  to  desire  as  associates 
two  men  with  higher  ideals  of  duty,  or  more  resolute  in  their  adherence 
to  those  ideals."  In  the  same  connection,  Mr.  Roosevelt  has  declared 
that  "in  all  the  dealings  of  the  commission  in  those  years,  there  was  no 
single  instance  wherein  the  politics  of -any  person  or  the  political  signifi- 
cance of  any  action  was  so  much  as  taken  into  account  in  any  case  that 
arose."  Other  commissioners  of  ability  and  eminence  who  succeeded 
Roosevelt  were  the  Hon.  William  Dudley  Foulke,  of  Indiana,  and  the 
Hon.  James  R.  Garfield,  of  Ohio,  now  Commissioner  of  Corporations. 
The  president  of  the  commission  at  the  present  time  is  Gen.  John  C. 
Black,  of  Illinois,  a  lifelong  Democrat,  and  with  him  are  associated  the 
Hon.  Alford  W.  Cooley,  of  New  York,  and  the  Hon.  Henry  F.  Greene, 
of  Minnesota,  both  Republicans.  The  secretary  of  the  commission, 
Mr.  John  T.  Doyle,  has  held  his  present  position  throughout  the  com- 
mission's history,  from  the  time  when  the  entire  effects  and  archives  of 
the  office  were  transported  from  one  Washington  building  to  another  in 
an  ordinary  pushcart,  until  to-day,  when  an  entire  five-story  building 
is  inadequate  for  the  work  of  the  bureau.  The  present  chief  examiner 
of  the  commission,  Mr.  Frank  M.  Riggings,  served  an  apprenticeship 
at  departmental  duties  before  his  connection  with  the  commission, 
and  is  familiar  with  the  examination  problem  in  its  most  practical 
phases.  The  same  thing  is  true  of  other  members  of  the  examining 
staff. 

This  matter  of  the  commission's  personnel  is  important  in  any  con- 
sideration of  the  improvement  and  reform  of  the  civil  service.  All  the 
officials  of  the  commission,  from  the  beginning,  seem  to  have  been  ani- 
mated with  a  desire  not  merely  to  enforce  the  letter  of  the  law,  but  to  do 
everything  possible  to  make  it  effective  in  the  broadest  sense.  A  con- 
tinual campaign  of  popular  education  has  been  necessary  in  order  to 
make  the  great  outside  public  understand  that  its  own  interests  were 
cared  for  and  guarded  by  the  commission,  while,  at  the  same  time,  no 
little  persuasion  was  necessary  in  the  early  years  in  order  to  bring  about 
the  hearty  cooperation  of  the  heads  of  departments  and  the  bureau 
chiefs.  After  more  than  a  score  of  years  of  enforcement,  it  is  the  all  but 
unanimous  conclusion  that  the  law  has  vindicated  itself  and  has  amply 
justified  its  enactment.  No  head  of  a  government  department  would 


CIVIL  SERVICE  691 

to-day  be  willing  to  go  back  to  the  conditions  of  1880,  even  if  the  law 
were  to  be  repealed  to-morrow.  It  is  quite  probable  that  in  the  event 
of  such  a  repeal,  the  first  action  taken  in  most  of  the  departments  would 
be  the  establishment  of  a  system  of  competitive  tests  based  on  the  ex- 
aminations now  conducted  by  the  Civil  Service  Commission.  It  should 
not,  however,  be  inferred  that  the  heads  of  all  the  executive  departments 
and  bureaus  are  unanimous  in  approval  of  examinations  per  se.  As  a 
bureau  chief  said  to  the  writer  a  few  days  ago,  "The  examinations  do 
not  in  every  case  form  the  best  test.  All  that  can  be  said  of  them  is  that 
for  the  purpose  intended,  applicable  to  the  great  mass  of  clerical  posi- 
tions in  Washington,  no  better  means  has  been  devised  for  securing  a 
fair  competitive  test." 

EXAMINATIONS  MADE  PRACTICAL 

Still,  as  the  system  has  developed  with  the  years,  the  practicality  of 
the  examinations  has  steadily  gained,  and  the  best  proof  of  the  general 
usefulness  of  the  system  is  to  be  found  in  the  fact  that  it  brings  to  the 
various  departments  the  types  of  candidates  most  desired.  The  heads 
of  the  scientific  bureaus  in  Washington  would  be  the  first  to  resent  any 
failure  on  the  part  of  the  commission  to  supply  desirable  material  for 
positions  in  their  specialties.  The  fact  is,  that  under  the  workings  of 
the  examination  system,  specialists  are  continually  coming  to  Washington 
and  receiving  appointments  in  one  part  or  another  of  the  service,  who 
represent  the  best-trained  intellects  available  in  the  country  in  those 
particular  lines.  Perhaps  it  is  not  fully  understood  outside  of  Wash- 
ington to  how  great  an  extent  the  departments  themselves  now  have  in 
hand  the  framing  of  examination  questions  for  these  technical  positions. 
Recognizing  the  fact  that  the  department  itself  is  the  best  judge  of  the 
qualifications  required  for  appointees  of  this  character,  the  Civil  Service 
Commission  has  wisely  sought  the  active  cooperation  of  the  departments 
in  the  framing  of  examination  questions.  It  is  decided,  for  example, 
that  the  Secretary  of  Agriculture  desires  to  call  to  Washington  for  the 
government  service  a  man  trained  in  the  study  of  noxious  plant  growths. 
The  department  itself  knows  better  than  any  outsider  possibly  can  what 
are  the  particular  qualifications  demanded  in  this  position.  At  the  same 
time,  it  is  for  the  interest  of  the  department  that  the  spirit  of  the  law 
should  be  fully  observed,  since  better  qualifications  can  in  many  cases 
be  secured  through  competition  than  otherwise.  The  Civil  Service  Com- 
mission is  notified  by  the  department  that  it  is  desired  to  fill  the  vacancy 
in  question,  and  the  commission  proceeds  to  request  the  department  to 
suggest  questions  to  be  used  in  the  competitive  examination  which  is 
advertised  to  be  held. 


692  AMERICAN   FEDERAL   GOVERNMENT 


Six  HUNDRED  DISTINCT  EXAMINATIONS 

The  commission  itself  conducts  at  the  present  time  more  than  six 
hundred  different  kinds  of  examinations,  and  it  is  not  to  be  supposed 
that  its  examiners,  unaided,  can  cover  this  entire  field  to  the  satisfaction 
of  the  departments.  In  the  case  which  we  are  considering,  the  Agricul- 
tural Department  frames  its  questions  and  submits  them  to  the  commis- 
sion; the  examination  is  held  by  the  commission,  and  in  due  time  the 
names  of  the  successful  candidates  are  sent  to  the  department,  which 
then  makes  its  own  selection  of  one  name  from  three.  If  the  department 
had  the  entire  management  of  the  matter  in  its  own  hands,  it  is  difficult 
to  see  how  it  could  make  the  test  more  practical  or  secure  better  results. 
In  fact,  the  methods  of  the  commission  in  the  matter  of  examinations, 
from  start  to  finish,  all  tend  to  the  most  practical  results  attainable.  In 
the  preparation  of  questions,  the  thing  kept  constantly  in  view  is  the 
nature  of  the  duties  to  which  the  candidate  will  be  assigned  on  appoint- 
ment. The  whole  object  of  the  test  is  to  ascertain  the  candidate's  quali- 
fications for  those  particular  duties.  In  the  case  of  the  special  technical 
positions  to  which  reference  has  been  made,  the  difficulty  experienced 
by  an  outside  examiner  in  comprehending  the  nature  of  these  specific 
duties  is  overcome  by  reference  of  the  whole  matter  to  the  authorities 
directly  concerned.  Thus,  the  whole  object  of  the  law  is  secured,  the 
department  attains  its  end,  the  candidates  are  subjected  to  the  fairest 
possible  tests,  and  the  general  good  of  the  service  is  promoted. 

TESTS  FOR  MECHANICAL  AND  EXPERT  POSITIONS 

Turning  from  these  positions,  in  which  the  highest  form  of  technical 
ability  is  required,  to  the  far  more  numerous  places  for  which  certain 
specific,  practical  tests  are  necessary,  we  find  that  the  commission  has 
steadily  increased  the  efficiency  of  its  examination  system.  The  public 
has  sometimes  been  led  to  suppose  that  persons  applying  for  mechanical 
positions  are  subjected  to  purely  literary  tests.  Nothing  could  be  further 
from  the  truth.  In  examinations  in  mechanical  trades,  the  subjects  con- 
sidered are  not  educational  tests  at  all,  but  simply  age,  physical  condition, ' 
and  experience,  the  relative  weights  of  which  (on  a  scale  of  100)  are  as 
follows:  age,  20;  physical  condition,  20;  experience,  60.  Then,  too, 
in  classes  of  positions  requiring  expert  knowledge  of  some  particular 
trade  or  calling,  the  tests  applied  are  of  the  most  practical  character. 
Take,  for  example,  the  examination  of  local  and  assistant  inspectors  of 
hulls,  under  the  Steamboat  Inspection  Service.  Here  the  relative  weights 
of  subjects,  on  a  scale  of  100,  are:  letter- writing,  10;  arithmetic  (com- 
prising problems  in  common  and  decimal  fractions,  mensuration,  and 
square  root),  10;  hull  construction  (comprising  questions  relative  to 


CIVIL   SERVICE  693 

the  construction  and  strength  of  wood  and  iron  hulls  of  vessels,  and 
a  description  of  the  various  parts  and  method  of  joining  same),  30; 
pilot  rules  and  inland  navigation,  20;  knowledge  of  lifeboats  and  life- 
rafts,  10 ;  experience,  20.  The  criticisms  of  the  examinations  that 
were  made  in  the  early  days  of  the  commission  have  vanished  before 
every  thoroughgoing  investigation  into  the  scope  and  character  of  the 
questions  themselves. 

THE  CASE  OF  THE  RAILWAY  MAIL  SERVICE 

The  best  answer  to  such  criticisms,  however,  is  to  be  found  in  the 
actual  results  produced  by  the  system.  As  to  these  results,  the  men 
directly  in  charge  of  the  departments  and  bureaus  affected  are,  of  course, 
best  qualified  to  speak.  Going  back  a  few  years,  one  of  the  most  strik- 
ing instances  of  the  effect  of  civil-service  examinations  on  the  standards 
of  government  employment  is  the  notable  improvement  in  the  efficiency 
of  the  railway  mail  service  as  recorded  from  year  to  year  in  the  official 
reports.  It  will  be  remembered  that  this  important  branch  of  the  Post 
Office,  after  having  been  the  football  of  both  political  parties  for  many 
years,  was  brought  under  the  classified  civil  service  during  President 
Harrison's  administration,  in  the  year  1889.  Prior  to  that  time.  Re- 
publican clerks  had  been  turned  out  by  a  Democratic  administration, 
and,  in  the  early  months  of  President  Harrison's  Republican  administra- 
tion, a  large  number  of  Democratic  clerks  had  in  turn  been  dismissed. 
The  whole  service  was  utterly  demoralized,  and  it  probably  reached  at 
that  time  the  lowest  state  of  efficiency  in  its  history.  It  was  some  months 
after  the  introduction  of  entrance  examinations  before  the  resulting 
change  in  the  character  of  the  appointees  began  to  make  itself  felt  in  the 
general  efficiency  of  the  service.  After  a  time,  however,  a  marked  im- 
provement was  noted,  and,  in  the  opinion  of  those  best  qualified  to  judge, 
the  advance  was  attributable  mainly,  if  not  wholly,  to  the  application  of 
the  civil-service  tests.  For  the  fiscal  year  ended  June  30,  1890,  the  errors 
in  distribution  committed  by  railway  mail  clerks  amounted  to  the  enor- 
mous total  of  2,789,245.  This  meant  that  2,834  pieces  of  mail  matter 
were  correctly  handled  to  each  error  disclosed.  Within  the  next  twelve 
months,  the  number  of  errors  had  greatly  decreased,  and  the  number 
of  pieces  correctly  handled  to  each  error  was  found  to  be  4,261.  There- 
after there  was  a  steady  decrease  in  the  number  of  errors  until  the  year 
1898,  when  the  number  of  errors  had  fallen  below  a  million,  and  the 
number  of  "correct"  pieces  to  each  error  was  11,960,  the  highest  number 
ever  reached  by  the  service.  Since  that  time  the  efficiency  has  been 
maintained  at  a  relatively  high  level,  the  number  of  correct  pieces  to 
each  error  never  falling  below  10,000,  and  in  1904  exceeding  n,ooo. 
The  sum  of  the  whole  matter  is  that  in  1890,  when  the  evils  of  the  spoils 
system  were  still  rife  in  the  railway  mail  service,  the  clerks  made  an  error 


694  AMERICAN   FEDERAL   GOVERNMENT 

to  every  2,800  pieces  of  mail  that  they  handled;  while  in  recent  years, 
the  system,  being  manned  by  appointees  chosen  under  the  civil-service 
rules,  the  ratio  of  errors  is  one  to  every  11,000.  This  is  a  concrete  case, 
in  which  every  citizen  is  concerned,  and  it  invites  the  attention  of  every 
business  man  who  is  interested  in  securing  as  high  a  state  of  efficiency 
in  government  work  as  has  been  attained  by  private  enterprise. 

GENERAL  GAINS  IN  ECONOMY  AND  EFFICIENCY 

For  obvious  reasons,  it  has  not  been  an  easy  matter  to  apply  tests  of 
this  kind  to  the  multifarious  bureaus  which  make  up  the  national  civil 
service.  The  main  difficulty  is  that  many  features  of  the  arbitrary  clas- 
sification of  clerkships,  which  was  made  more  than  fifty  years  ago,  still 
survive.  In  most  of  the  Government  offices  there  is  a  failure  to  observe 
a  logical  division  of  duties.  Thus,  a  $1,400  clerk  will  be  found  per- 
forming work  of  precisely  the  same  character  as  that  performed  by  a 
$1,200  clerk.  Frequently  a  clerk  promoted  from  $1,200  to  $1,400  does 
exactly  the  same  work  after  his  promotion  that  he  did  before.  All  this 
confusion  in  the  system  makes  it  difficult  to  apply  any  general  test  show- 
ing how  the  efficiency  of  a  bureau  or  department  has  been  affected  by 
the  operation  of  the  civil-service  law.  The  officials  of  the  Treasury 
Department  will  tell  you,  however,  that  in  the  customs  service  alone  there 
has  been  an  actual  saving,  in  the  matter  of  salaries,  of  at  least  10  per  cent. 
This  would  mean  an  annual  saving  to  the  Government  of  not  less  than 
two  million  dollars.  Some  years  ago,  it  was  estimated  that  altogether 
ten  million  dollars  was  saved  to  the  Government  in  the  various  depart- 
ments through  the  operation  of  the  law,  by  the  reduction  in  the  required 
number  of  clerkships  and  the  increased  efficiency  of  the  new  employees. 
If  this  statement  was  justified  when  it  was  made,  the  saving  to-day  must 
be  far  greater,  since  many  thousand  offices  have  been  added  to  the  clas- 
sified service  within  the  last  few  years.  That  public  opinion  in  the 
country  at  large  has  been  favorably  impressed  by  these  object-lessons 
is  shown  by  the  agitations  in  various  States  and  cities  for  local  systems 
similar  in  principle  and  method  to  the  federal  civil-service  establishment. 

THE  PAY  FOR  GOVERNMENT  WORK 

In  regard  to  the  compensation  for  government  work,  intelligent  ob- 
servation will  probably  confirm  the  epigrammatic  statement  in  the 
newspaper  witticism  that  has  lately  gone  the  rounds,  to  the  effect  that 
the  pay  is  small  for  some  public  officials,  but  that  some  public  officials 
are  small  for  the  pay.  As  a  rule,  the  lower  positions  in  the  government 
service  are  paid  more,  and  the  higher  positions  less,  than  in  private 
business.  In  most  of  the  offices  advancement  is  slower,  but  this  is  partly 
compensated  for  by  the  fact  that  the  pay  is  higher  on  the  whole  in  the 


CIVIL   SERVICE  695 

earlier  years.  A  man  who  has  worked  ten  years  for  Uncle  Sam  will 
probably  have  had  a  gross  income  about  equal  to  what  a  man  of  similar 
abilities,  working  the  same  length  of  time,  would  have  received  from  a 
railroad  company.  At  the  start  his  salary  would  have  been  better  than 
the  railroad  man's,  but  the  latter  in  all  likelihood  would  have  caught 
up  with  him  and  outstripped  him  in  the  ten-year  period.  In  the  long 
run,  one  evens  up  with  the  other.  This  statement  applies  to  the  general 
departmental  positions  in  Washington. 

Young  professional  and  scientific  men  of  special  qualifications  are 
started  on  salaries  corresponding  pretty  closely  on  the  average  with  the 
salaries  of  "instructors"  on  college  and  university  faculties.  The  gov- 
ernment man  has  no  long  vacation  in  the  year  corresponding  with  that  of 
the  college  professor.  Furthermore,  he  is  held  more  closely  to  the  obser- 
vation of  office  hours.  Washington,  however,  has  many  attractions  for 
this  type  of  worker.  He  meets  many  men  of  his  own  degree  of  education 
and  of  similar  aspirations,  and  in  not  a  few  cases  scientific  men,  who 
have  proved  themselves  capable  investigators,  have  been  put  in  respon- 
sible positions,  where  they  virtually  direct  the  work  of  many  subor- 
dinates, and  control  the  expenditure  of  considerable  funds  in  the 
interest  of  scientific  research.  A  few  such  men  in  Washington  have 
undoubtedly  attained  such  positions  far  more  rapidly  than  would  have 
been  possible  on  any  university  faculty. 

Washington  offers  further  advantages  to  young  men  of  promise  who 
succeed  in  passing  the  examinations  and  obtain  places  in  the  depart- 
ments. There  are  excellent  law  and  medical  schools  in  the  city  which 
accommodate  their  programmes  of  lectures  to  the  department  hours.  It 
is  quite  the  usual  thing  for  young  department  clerks  to  pursue  a  three- 
year  course  of  instruction,  obtain  degrees  in  law  and  mec&cine,  and  then 
resign  their  clerkships  to  embark  upon  professional  careers.  But  this 
is  by  no  means  the  whole  purpose  of  such  institutions  as  the  George 
Washington  University,  which,  under  the  vigorous  administration  of 
President  Needham  and  Dean  Tucker,  of  the  Schools  of  Law,  Juris- 
prudence, and  Diplomacy,  is  making  a  serious  and  promising  effort  to 
provide  courses  of  instruction  that  will  actually  qualify  students  to  fill 
important  posts,  especially  in  the  State  Department,  for  which  no  other 
university  makes  systematic  provision.  There  is  an  increasing  number 
of  positions  in  the  departments,  notably  in  the  newly  organized  Depart- 
ment of  Commerce  and  Labor,  in  which  a  sound  knowledge  of  the  law 
in  one  or  more  branches  is  a  part  of  the  qualifications  required.  A  man 
entering  on  an  ordinary  clerkship  may,  by  three  or  four  years  of  study 
at  the  law  school,  qualify  himself  for  one  of  these  semi-technical  legal 
positions.  Such  a  man  may  reasonably  expect  quite  as  good  an  income 
in  the  form  of  a  government  salary  as  the  average  young  lawyer  gets  in 
the  early  years  of  a  private  practice.  As  a  life  career,  on  the  other  hand, 
government  work,  it  must  be  admitted,  is  less  alluring  to  the  young  man 


696  AMERICAN   FEDERAL   GOVERNMENT 

of  ambition.  All  the  higher  positions  in  the  service  are  notoriously 
ill-paid.  It  is  not  at  all  unusual  to  find  in  Washington  officials  of  long 
experience  and  the  most  thorough  equipment,  controlling  the  disburse- 
ment of  many  thousands  of  the  Government's  dollars,  holding  places 
of  actual  responsibility,  and  receiving  a  yearly  stipend  of  $2,700,  or  even 
less.  In  some  of  the  scientific  bureaus  there  are  compensating  advantages, 
but  in  the  general  run  of  departmental  positions,  it  is  hard  to  discern  any 
rewards  at  the  top  that  are  really  worth  striving  for  from  the  bottom. 
Most  of  the  plums  are  on  the  lower  branches  of  the  tree. 

FACTS  ABOUT  THE  PERSONNEL 

A  great  mass  of  information  about  the  executive  civil  service,  much 
of  which  it  is  impossible  even  to  summarize  in  a  magazine  article,  has 
recently  been  collected  and  published  in  Census  Bulletin  No.  12,  by  the 
Bureau  of  the  Census.  From  the  data  thus  compiled,  it  appears  that  of 
the  271,169  officers  and  employees  in  the  service  on  June  30,  1903, 
25,810  were  employed  within  the  District  of  Columbia,  of  which  number 
20,813  were  included  in  the  competitive  class.  The  total  number  in 
the  competitive  class  outside  the  District  of  Columbia  at  that  time  was 
113,736.  It  also  appears  from  these  statistics  that  the  ratio  of  men  and 
women  employed  in  Washington  is  2.73  to  i,  that  outside  of  Washington 
it  is  18.36  to  i,  and  that  in  the  entire  service  it  is  10.29  to  i.  From  the 
tabulation  of  salaries,  excluding  those  classes  of  employees  receiving  less 
than  $720  a  year,  and  also  those  receiving  more  than  $2,500  a  year 
(most  of  whom  are  Presidential  appointments),  the  approximate  average 
annual  salary  of  the  Washington  employee  is  $1,212,  of  those  employed 
outside  of  Washington,  $1,010,  and  of  the  entire  service,  $1,053.  It 
is  found  that  the  average  periods  of  service  of  employees  were  10.55 
years  in  Washington,  6.38  elsewhere,  and  7.10  years  in  the  entire  service. 
In  Washington,  5.54  per  cent  of  the  employees  have  served  more  than 
thirty  years,  while  in  the  entire  service  the  percentage  is  only  1.97.  A 
comparison  of  the  length  of  service  of  employees  in  the  executive  ser- 
vice with  that  of  the  employees  of  the  N^ew  York  Central  &  Hudson 
River  Railroad,  and  the  New  York,  New  Haven  &  Hartford  Railroad, 
revealed  the  fact  that  the  government  service  contains  a  larger  propor- 
tion of  employees  who  have  served  over  ten  and  less  than  twenty  years; 
but,  of  those  who  served  a  longer  period,  the  railroad  companies  can 
show  a  larger  proportion. 

As  to  the  geographical  distribution  of  government  employees,  the 
Eastern  and  central  States  of  the  Union  are  more  fully  represented  than 
any  other  sections  of  the  country  among  those  who  take  examinations 
and  receive  appointments  in  the  service.  While  Mr.  Roosevelt  was  a 
Civil  Service  Commissioner,  he  made  strenuous  efforts  to  fill  the  quotas 
of  the  Southern  States,  which  had  long  been  far  behind  the  North  and 


CIVIL  SERVICE  697 

West  in  this  regard.  Much  of  the  old  prejudice  against  the  administra- 
tion of  the  law  was  overcome  by  Mr.  Roosevelt's  efforts,  and  it  is  believed 
that  Southern  young  men  and  women  are  no  longer  deterred  from  enter- 
ing the  examinations  by  any  feeling  that  they  will  fail  to  receive  fair 
treatment.  Nevertheless,  the  South  is  still  backward  in  this  respect, 
and  the  reason  assigned  by  those  who  have  given  the  matter  special 
attention  is  that  for  the  majority  of  Southern  youth  the  opportunities 
for  securing  the  kind  of  training  necessary  for  a  successful  candidate  in 
the  examinations  are  relatively  inferior  to  those  possessed  by  young 
people  in  the  North  and  West.  Stenography  and  typewriting  are  almost 
invariably  demanded  at  the  present  time  as  qualifications  for  a  Wash- 
ington clerkship.  Throughout  the  Northern  States,  the  facilities  for 
qualifying  in  these  branches  have  greatly  multiplied  within  a  few  years, 
so  that  it  is  now  possible  for  a  young  man  or  a  young  woman,  even  in  the 
rural  districts  of  Eastern  or  middle  Western  States,  to  secure  a  fair  train- 
ing in  stenography  and  typewriting.  This,  however,  is  still  impossible 
in  large  regions  of  the  South. 

THE  MORAL  CHARACTER  OF  APPOINTEES 

A  few  months  ago,  the  statement  was  carelessly  made  in  an  American 
magazine,  that  not  five  hundred  of  the  Washington  office-holders  looked 
upon  their  offices  as  sacred  trusts  to  the  people.  The  author  of  the 
statement  declared  that  public  opinion  among  the  civil-service  employees 
regarded  as  clear  gain  anything  that  could  be  gotten  out  of  the  Govern- 
ment, whether  an  hour's  time  or  a  railroad  pass  for  betraying  the  Gov- 
ernment's interest  under  the  care  of  the  employees.  Against  such  cheap 
and  wholesale  charges  should  be  arrayed  the  undoubted  consensus  of 
opinion  among  those  who  have  frequent  business  dealings  with  the  de- 
partments, as  well  as  among  many  disinterested  observers  in  Washington 
who  have  had  opportunities  to  study  the  facts  that  the  average  govern- 
ment employee  is  neither  more  nor  less  moral  than  the  average  man  or 
woman  employed  in  private  business  in  any  of  our  American  cities.  It 
will  be  recalled  that  in  the  post-office  scandals  of  the  past  few  years,  the 
officials  indicted  have  in  every  instance  been  political  appointees;  not 
one  of  the  employees  in  the  classified  service  has  been  found  guilty  of 
any  form  of  corruption.  The  Government  requires  of  all  applicants  for 
positions  in  its  service  just  such  indorsement  of  character  as  would  be 
demanded  by  the  head  of  any  business  house.  It  would  be  as  reason- 
able to  make  wholesale  charges  of  dishonesty  against  98  per  cent  of  the 
employees  of  the  New  York  Central  Railroad  Company,  as  to  make  such 
charges  against  98  per  cent  of  Washington  officialdom. 


698  AMERICAN  FEDERAL   GOVERNMENT 

EXTENSION   OF   CIVIL-SERVICE  RULES1 

SIGNIFICANT  of  the  present-day  attitude  has  been  the  slight  attention 
paid  in  any  quarter  to  the  orders  amending  the  civil  service  rules,  which 
the  President  signed  just  before  his  departure.  The  public  merely 
notices  that  the  screws  have  been  turned  a  little  tighter  in  the  classified 
service,  and  there  its  interest  ceases.  This  steady  progress  of  the  classified 
service  is,  however,  having  some  notable  results.  Congressmen  and 
friends  of  the  Administration  want  a  certain  number  of  places,  and  the 
more  fully  the  old  ones  are  covered  under  the  reform  roof,  the  greater 
the  enthusiasm  for  the  creation  of  new  positions,  in  order  to  have  some- 
thing to  fill.  This  is  one  of  the  adverse  effects  of  civil-service  reform. 

Privately,  many  congressmen  are  pleased  to  realize  that  there  are  now 
comparatively  few  spoils  to  be  distributed.  In  public,  especially  when 
in  the  presence  of  constituents,  they  rail  at  the  President  and  the  Civil 
Service  Commission.  When  Congress  reconvenes,  the  House  of  Repre- 
sentatives will  renew  its  old  play  of  threatening  to  withhold  all  appro- 
priations from  the  Commission.  The  President  has  gradually  covered 
Government  employees  by  the  classified  service  until  there  are  few  places 
left  with  which  the  members  of  Congress  may  barter.  Within  the  last 
three  weeks,  at  least  one  hundred  Republican  members  of  the  House  of 
Representatives  have  searched  every  bureau  of  every  department  for 
some  official  crumbs  that  might  be  thrown  to  the  hungry  boys  at  home, 
and  they  all  tell  the  same  story  —  no  crumbs  are  to  be  found. 

In  his  first  message  to  Congress  President  Roosevelt  said  that  "the 
merit  system  of  making  appointments  is,  in  its  essentials,  as  democratic 
and  American  as  the  common  school  system  itself.  And  wherever  the 
conditions  have  permitted  the  application  of  the  merit  system  in  its 
fullest  and  widest  sense,  the  gain  to  the  Government  has  been  immense." 

A  LIST  OF  THE  EXTENSIONS 

Within  two  months  after  he  became  President,  Mr.  Roosevelt  turned 
his  attention  to  those  employees  of  the  Government  who  were  still  out- 
side the  classified  service.  Here  is  a  list  of  the  extensions  he  has  made  since : 

November  18,  1901  —  Federal  services,  War  Department,  reincluded. 

November  27,  1901 —  Rural  free  delivery  service,  clerks,  route  inspectors, 
special  agents,  messengers,  etc. 

February  i,  1902 —  Rural  free  delivery  system  carriers. 

April  28,  1902 —  At  the  President's  suggestion  temporary  war  emergency 
employees  were  transferred  to  the  classified  service  by  act  of  Congress. 

July  i,  1902  —  At  the  suggestion  of  the  President  Census  Office  employees 
were  classified  by  act  of  Congress,  March  6,  1902. 

July  3,  1902  —  Employees  of  the  military  government  in  Cuba  appointed 
under  special  civil -service  rules. 

1  New  York  Evening  Post,  April  7,  1905. 


CIVIL   SERVICE  699 

October  4,  1902 —  Persons  employed  on  construction  of  Government 
Printing  Office  building  continued  on  War  College  and  Washington  Barracks 
under  special  civil-service  rule. 

February  n,  1903 —  Temporary  employees  in  insular  naval  stations  trans- 
ferred to  the  classified  service. 

February  n,  1903 —  Employees  at  Post  Office  given  free  delivery  between 
July  i,  1901,  and  June  30,  1903,  covered  by  the  classified  service. 

June  30,  1904 —  By  operation  of  the  rules —  employees  in  sixty-six  post 
offices  classified. 

August  10,  1904 —  The  position  of  one  clerk  at  each  pension  agency  to  act 
for  the  pension  agent  during  his  absence,  transferred  from  the  excepted  to  the 
competitive  class. 

March  26,  1904 —  All  positions  under  the  War  Department  in  the  Philip- 
pines except  those  filled  by  persons  employed  as  skilled  laborers  or  persons 
appointed  by  the  President,  classified. 

November  15,  1904 —  Positions  under  the  Isthmian  Canal  Commission, 
except  those  filled  by  persons  employed  as  laborers,  and  persons  whose  appoint- 
ment is  confirmed  by  the  Senate  and  engineers  detailed  from  the  army,  classified. 

November  23,  1904 —  Positions  of  deputy  collector,  deputy  surveyor,  cashier, 
and  naval  officer  in  the  customs  service  transferred  from  the  excepted  list  to  the 
classified  service. 

December  19,  1904 —  Positions  in  the  forestry  service  of  the  Department 
of  the  Interior  made  competitive. 

June  22,  1904 —  The  positions  of  mail  feeder  and  press  feeder  at  the  Phila- 
delphia and  New  Orleans  Mints  included  in  the  classified  service  at  the  request 
of  the  Treasury  Department. 

March  28,  1905  —  Special  agents  of  the  Immigration  Bureau  on  duty  in 
foreign  territory  brought  within  the  classified  service. 

April  3,  1905 —  Positions  of  cashiers  and  finance  clerks  in  post  offices 
throughout  the  country,  taken  out  of  the  excepted  class,  to  be  filled  by  pro- 
motion. Another  order  of  the  same  date,  relating  to  laborers  in  the  depart- 
ments at  Washington,  has  been  made  familiar  in  recent  despatches. 

At  the  time  Mr.  Roosevelt  became  President  there  were,  in  round 
numbers,  83,000  persons  in  the  classified  service.  The  number  is  now 
155,000.  Within  the  last  twelve  months  the  service  has  shown  a  growth 
of  about  14  per  cent.  Part  of  this  is,  of  course,  due  to  the  natural  growth 
of  the  system.  In  addition  to  these  orders  it  has  been  provided  that 
unclassified  laborers  at  Washington  and  elsewhere  should  be  selected 
by  a  system  of  competitive  registration,  taking  account  of  age,  physical 
condition,  experience,  and  character.  Thus  24,000  unclassified  positions 
were  made  competitive. 

RURAL  FREE  DELIVERY  CLASSIFICATION 

The  order  of  the  President  that  stands  out  most  conspicuously  is  that 
placing  the  rural  free  delivery  service  in  the  classified  list.  At  the  time 
it  was  issued  only  6,500  men  were  employed;  now  more  than  25,000  are 
included. 


700  AMERICAN   FEDERAL   GOVERNMENT 

One  notable  rule  promulgated  requires  public  officers-  in  the  Federal 
service  to  give  testimony  under  oath  before  the  Civil  Service  Commis- 
sion when  investigations  are  instituted.  An  honest  effort  has  been  made 
to  cure  abuses  relating  to  transfers  and  reinstatements,  and  auditing 
and  disbursing  officers  have  been  forbidden  to  pay  salaries  to  persons 
holding  positions  in  violation  of  the  civil-service  rules. 

It  is  well  understood  that  the  President  has  further  extensions  of  the 
classified  service  in  mind.  The  rule  that  fourth-class  postmasters  are 
to  be  removed  for  cause  may  prove  to  be  the  forerunner  of  an  executive 
order  putting  these  public  servants  on  a  more  secure  basis.  It  is  a  reason- 
ably safe  guess  that  if  the  members  of  Congress  do  not  accept  without 
murmurings  the  rule  that  such  postmasters  shall  be  retained  in  office 
during  good  behavior  and  faithful  service,  the  President  will  settle  the 
whole  controversy  by  classifying  the  95,000  postmasters. 

BACK  DOOR  CLOSED 

In  their  vain  quest  for  places  for  constituents  members  of  Congress 
have  come  to  believe  that  the  President  has  effectually  closed  the  "back 
door"  entrance  to  clerkships.  From  1896  to  1901  it  was  an  easy  thing 
for  a  member  of  Congress  with  influence  to  find  some  back  door  through 
which  he  could  push  a  constituent  into  a  place  without  the  trouble  of 
consulting  the  Civil  Service  Commission.  One  of  the  favorite  "back 
doors"  led  first  to  some  remote  country  post  office  that  was  about  to 
become  a  free  delivery  office.  If  the  congressman  had  the  proper  amount 
of  influence  his  constituent  was  put  on  the  pay-roll  of  the  remote  post 
office,  and  as  soon  as  it  came  into  the  classified  service  by  reason  of  be- 
coming a  free  delivery  office  the  constituent  was  transferred  to  the  place 
originally  intended  for  him  in  one  of  the  departments  here.  The  post- 
office  investigation  revealed  this  crooked  business,  and  in  some  instances 
persons  who  were  found  to  be  drawing  salaries  in  post  offices  they  had 
never  seen,  were  made  to  give  up  their  illegal  salaries.  The  President 
soon  put  a  stop  to  this  by  applying  a  rule  that  a  transfer  should  not  be 
made  unless  a  person  had  actually  served  six  months  in  the  office  from 
which  he  asked  transfer,  and  also  providing  that  the  person  in  question 
must  qualify  for  the  new  place  by  taking  an  examination. 

Another  "back  door"  which  members  of  Congress  found  so  conven- 
ient led  to  the  laborers'  rolls.  Under  the  old  regime,  it  was  a  common 
thing  to  appoint  men  as  unclassified  laborers  and  then,  in  due  time,  put 
them  to  work  in  the  classified  service.  With  the  laborers  covered  by 
the  classified  service,  this  abuse  no  longer  exists. 

A  BETTER  ATMOSPHERE 

After  all,  it  is  the  civil  service  "atmosphere"  that  is  doing  most  to 
strengthen  the  merit  system.  The  average  departmental  official,  from 


CIVIL   SERVICE  701 

the  cabinet  officer  down,  is  about  what  the  President  of  the  United  States 
wants  him  to  be.  The  knowledge  that  Mr.  Roosevelt  believes  in  the  merit 
system  affects  public  sentiment  mightily.  A  member  of  Congress  from 
Indiana  remarked,  after  he  had  failed  to  find  places  available  for  con- 
stituents, that  officials  said  to  him  privately:  "Of  course,  we  might 
edge  in  a  man  notwithstanding  the  executive  orders  and  the  extensions 
of  rules,  but  we  do  not  dare  do  it." 

Abuses  of  the  system  still  exist.  The  late  Senator  Quay  was  not  prose- 
cuted for  collecting  campaign  funds  from  the  Federal  appointees  in 
Pennsylvania,  while  C.  O.  Self,  a  competent  clerk  in  the  internal  revenue 
office  at  Terre  Haute,  was  dismissed  for  the  same  offense.  No  one  avers 
that  the  President  did  wrong  in  dismissing  young  Self,  as  that  act  settled 
the  controverted  question  as  to  whether  a  person  could  be  compelled  to 
testify  before  the  Commission,  but  to  persons  who  watched  the  courses 
of  the  two  cases  it  always  seemed  that  the  President  ought  to  have 
insisted  on  a  trial  in  the  Quay  case. 

Undoubtedly  the  system  needs  corrective  legislation,  but  Congress 
does  not  seem  disposed  to  act.  What  to  do  with  the  men  and  women 
who  have  reached  the  age  that  unfits  them  for  service  is  the  great  prob- 
lem. Year  by  year  the  departments  are  becoming  more  topheavy.  Cab- 
inet officers  have  it  within  their  power  to  discharge  the  aged  and  the 
infirm,  but  they  will  not  do  it,  and  perhaps  they  should  not.  Ten  or 
twelve  bills,  offering  remedies  for  this  one  defect,  were  before  Congress 
last  session,  but  none  received  consideration.  The  Civil  Service  Com- 
mission looks  with  favor  on  the  plan  to  establish  by  law  an  annuity  in- 
surance system  in  the  departments,  and,  generally  speaking,  the  clerks 
favor  this  plan.  Representative  Gillett  of  Massachusetts,  who  was 
chairman  of  the  Committee  on  the  Reform  of  the  Civil  Service  in  the 
last  Congress,  and  will  probably  be  reassigned  to  that  chairmanship, 
hopes  for  action  of  some  kind  at  the  coming  session. 


SENATOR  HOAR   ON  APPOINTMENTS  TO   OFFICE1 

[This  extract  deals  briefly  with  the  relations  of  the  President  to  Congress  in 
the  matter  of  appointments.] 

AMONG  the  great  satisfactions  in  the  life  of  public  men  is  that  of  some- 
times being  instrumental  in  the  advancement  to  places  of  public  honor 
of  worthy  men,  and  of  being  able  to  have  a  great  and  salutary  influence 
upon  their  lives.  I  have  always  held  to  the  doctrine  of  what  is  called 
Civil  Service  Reform,  and  have  maintained  to  the  best  of  my  ability 
the  doctrine  of  the  absolute  independence  of  the  Executive  in  such 
matters,  as  his  right  to  disregard  the  wishes  or  opinions  of  members  of 

1  From  Senator  Hoar's  Autobiography. 


702  AMERICAN   FEDERAL   GOVERNMENT 

either  House  of  Congress,  and  to  make  his  appointments  executive  and 
judicial,  without  advice,  or  on  such  advice  as  he  shall  think  best.  But, 
at  the  same  time,  there  can  be  no  doubt  that  the  Executive  must  depend 
upon  some  advice  other  than  his  own,  to  learn  the  quality  of  men  in 
different  parts  of  this  vast  Republic,  and  to  learn  what  will  be  agreeable 
to  public  opinion  and  to  the  party  which  is  administering  the  Govern- 
ment and  is  responsible  for  its  administration.  He  will,  ordinarily,  find 
no  better  source  of  such  information  than  in  the  men  whom  the  people 
have  shown  their  own  confidence  in  by  entrusting  them  with  the  important 
function  of  Senator  or  Representative.  He  will  soon  learn  to  know  his 
men,  and  how  far  he  can  safely  take  such  advice.  He  must  be  careful 
to  see  to  it  that  he  is  not  induced  to  build  up  a  faction  in  his  party,  or  to 
fill  up  the  public  offices  with  the  partisans  of  ambitious  but  unscrupulous 
politicians.  When  I  entered  the  House  of  Representatives,  before  the 
Civil  Service  Reform  had  made  any  progress,  I  addressed  and  had  put 
on  file  with  the  Secretary  of  the  Treasury  a  letter  in  which  I  said  that  I 
desired  him  to  understand  when  I  made  a  recommendation  to  him  of 
any  person  for  public  office,  it  was  to  be  taken  merely  as  my  opinion  of 
the  merit  of  the  candidate,  and  not  as  an  expression  of  a  personal  re- 
quest ;  and  that  if  he  found  any  other  person  who  would  in  his  judgment 
be  better  for  the  public  service,  I  hoped  he  would  make  the  selection 
without  regard  to  my  recommendation. 

I  have  never  undertaken  to  use  public  office  as  personal  patronage, 
or  to  claim  the  right  to  dictate  to  the  President  of  the  United  States,  or 
that  the  Executive  was  not  entirely  free,  upon  such  advice  as  he  saw  fit, 
or  without  advice,  if  he  thought  fit,  in  making  his  selection  for  public 
office. 


XIV 

THE  COURTS 

FROM  AN  ADDRESS  OF  MR.  JUSTICE  FIELD  DELIVERED 
UPON  THE  OCCASION  OF  THE  HUNDREDTH  ANNI- 
VERSARY  OF  THE   COURT1 

AND  now,  with  its  history  in  the  century  past,  what  is  needed,  that 
the  Supreme  Court  of  the  United  States  should  sustain  its  character 
and  be  as  useful  in  the  century  to  come?  I  answer,  as  a  matter  of  the 
first  consideration,  —  that  it  should  not  be  overborne  with  work,  and  by 
that  I  mean  it  should  have  some  relief  from  the  immense  burden  now 
cast  upon  it.  This  can  only  be  done  by  legislative  action,  and  in  de- 
termining what  measures  shall  be  adopted  for  that  purpose  Congress 
will  undoubtedly  receive  with  favor  suggestions  from  the  Bar  Associa- 
tions of  the  country.  The  Justices  already  do  all  in  their  power,  for 
each  one  examines  every  case  and  passes  his  individual  judgment  upon 
it.  No  case  in  the  Supreme  Court  is  ever  referred  to  any  one  Justice, 
or  to  several  of  the  Justices,  to  decide  and  report  to  the  others.  Every 
suitor,  however  humble,  is  entitled  to  and  receives  the  judgment  of  every 
Justice  upon  his  case. 

In  considering  this  matter  it  must  be  borne  in  mind  that,  in  addition 
to  the  great  increase  in  the  number  of  admiralty  and  maritime  cases, 
from  the  enlarged  commerce  on  the  seas,  and  on  the  navigable  waters 
of  the  United  States,  and  in  the  number  of  patent  cases  from  the  multi- 
tude of  inventions  brought  forth  by  the  genius  of  our  people,  calling  for 
judicial  determination,  even  to  the  extent  of  occupying  a  large  portion 
of  the  time  of  the  court,  many  causes,  which  did  not  exist  upon  its 
organization  or  during  the  first  quarter  of  the  century,  have  added 
enormously  to  its  business.  Thus  by  the  new  agencies  of  steam  and 
electricity  in  the  movement  of  the  machinery  and  transmission  of  intel- 
ligence, creating  railways  and  steamboats,  telegraphs  and  telephones, 
and  adding  almost  without  number  to  establishments  for  the  manu- 
facture of  fabrics,  transactions  are  carried  on  to  an  infinitely  greater 
extent  than  before  between  different  States,  leading  to  innumerable 

1  Reprinted  in  Carson,  History  of  the  Supreme  Court,  I,  713. 
703 


704  AMERICAN   FEDERAL   GOVERNMENT 

controversies  between  their  citizens  which  have  found  their  way  to  that 
tribunal  for  decision.  More  than  one-half  of  the  business  before  it  for 
years  has  arisen  from  such  controversies.1 

The  facility  with  which  corporations  can  now  be  formed  has  also 
increased  its  business  far  beyond  what  it  was  in  the  early  part  of  the  cen- 
tury. Nearly  all  enterprises  requiring  for  their  successful  prosecution 
large  investments  of  capital  are  conducted  by  corporations.  They,  in 
fact,  embrace  every  branch  of  industry,  and  the  wealth  that  they  hold 
in  the  United  States  equals  in  value  four-fifths  of  the  entire  property 
of  the  country.  They  carry  on  business  with  the  citizens  of  every  State 
as  well  as  with  foreign  nations,  and  the  litigation  is  enormous,  giving 
rise  to  every  possible  question  to  which  the  jurisdiction  of  the  Federal 
courts  extend. 

The  numerous  grants  of  the  public  domain,  embracing  hundreds  of 
millions  of  acres,  in  aid  of  the  construction  of  railways ;  also  for  common 
schools,  for  public  buildings  and  institutions  of  much  intricacy  and 
difficulty.  The  discovery  of  mines  of  the  precious  metals,  in  our  new 
possessions  on  the  Pacific  Coast,  and  the  modes  adopted  for  their  develop- 
ment, have  added  many  more.  The  legislation  required  by  the  exigencies 
of  the  civil  war,  and  following  it,  and  the  constitutional  amendments 
which  were  designed  to  give  farther  security  to  personal  rights,  have 
brought  before  the  court  questions  of  the  greatest  interest  and  impor- 
tance, calling  for  the  most  earnest  and  laborious  consideration.  Indeed, 
the  cases  which  have  come  before  this  court,  springing  from  causes  which 
did  not  exist  during  the  first  quarter  of  the  century,  exceed,  in  the  magni- 
tude of  the  property  interests  presented,  all  cases  brought  within  the 
same  period  before  any  court  of  Christendom. 

Whilst  the  constitutional  amendments  have  not  changed  the  structure 
of  our  dual  form  of  government,  but  are  additions  to  the  previous  amend- 
ments, and  are  to  be  considered  in  connection  with  them  and  the  original 
Constitution  as  one  instrument,  they  have  removed  from  existence  an 
institution  which  was  felt  by  wise  statesmen  to  be  inconsistent  with  the 
great  declarations  of  right  upon  which  our  government  is  founded ;  and 
they  have  vastly  enlarged  the  subjects  of  Federal  jurisdiction.  The 
amendment  declaring  that  neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime,  shall  exist  in  the  United  States  or  any 
place  subject  to  their  jurisdiction,  not  only  has  done  away  with  slavery 
of  the  black  man,  as  it  then  existed,  but  interdicts  forever  the  slavery 
of  any  man,  and  not  only  slavery,  but  involuntary  servitude  —  that  is, 
serfage,  vassalage,  villeinage,  peonage,  and  all  other  forms  of  compulsory 
service  for  the  mere  benefit  or  pleasure  of  others.  As  has  often  been 
said,  it  was  intended  to  make  every  one  born  in  this  country  a  free  man 

1  [By  the  creation  of  Circuit  Courts  of  Appeals  in  1891,  the  volume  of  business  in  the 
Supreme  Court  was  greatly  diminished.  These  courts  are  final  in  matters  such  as  are 
mentioned  above,  unless  a  question  of  constitutionality  is  involved.] 


THE   COURTS  705 

and  to  give  him  a  right  to  pursue  the  ordinary  vocations  of  life  without 
other  restraint  than  such  as  effects  all  others,  and  to  enjoy  equally  with 
them  the  fruits  of  his  labor.  The  right  to  labor  as  he  may  think  proper 
without  injury  to  others  is  an  element  of  that  freedom  which  is  his  birth- 
right. 

The  amendment,  declaring  that  no  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,  has  proclaimed  that  equality  before  the 
law  shall  forever  be  the  governing  rule  of  all  the  States  of  the  Union, 
which  every  person  however  humble  may  invoke  for  his  protection.  In 
enforcing  these  provisions,  or  considering  the  laws  adopted  for  their 
enforcement,  or  laws  which  are  supposed  to  be  in  conflict  with  them, 
difficult  and  far-reaching  questions  are  presented  at  every  term  for 
decision. 

Up  to  the  middle  of  the  present  century  the  calendar  of  the  Court  did 
not  average  140  cases  a  term,  and  never  amounted  in  any  one  term  to 
300  cases;  the  calendar  of  the  present  term  exceeds  1,500.  In  view  of 
the  condition  of  the  Court  —  its  crowded  docket  —  the  multitude  of 
questions  constantly  brought  before  it  of  the  greatest  and  most  extended 
influence  —  surely  it  has  a  right  to  call  upon  the  country  to  give  it  assist- 
ance and  relief.  Something  must  be  done  in  that  direction  and  should 
be  done  speedily  to  prevent  the  delays  to  suitors  now  existing.  To  delay 
justice  is  as  pernicious  as  to  deny  it.  One  of  the  most  precious  articles 
of  Magna  Charta  was  that  in  which  the  King  declared  that  he  would 
not  deny  nor  delay  to  any  man  justice  or  right.  And  assuredly  what 
the  barons  of  England  wrung  from  their  monarch,  the  people  of  the 
United  States  will  not  refuse  to  any  suitor  for  justice  in  their  tribunals. 

Furthermore,  I  hardly  need  say,  that,  to  retain  the  respect  and  con- 
fidence conceded  in  the  past,  the  Court,  whilst  cautiously  abstaining 
from  assuming  powers  granted  by  the  Constitution  to  other  departments 
of  the  government,  must  unhesitatingly  and  to  the  best  of  its  ability 
enforce,  as  heretofore,  not  only  all  the  limitations  of  the  Constitution 
upon  the  Federal  and  State  governments,  but  also  all  the  guarantees  it 
contains  of  the  private  rights  of  the  citizen,  both  of  person  and  of  prop- 
erty. As  population  and  wealth  increase  —  as  the  inequalities  in  the 
conditions  of  men  become  more  and  more  marked  and  disturbing  — 
as  the  enormous  aggregation  of  wealth  possessed  by  some  corporations 
excites  uneasiness  lest  their  power  should  become  dominating  in  the 
legislation  of  the  country,  and  thus  encroach  upon  the  rights  or  crush 
out  the  business  of  individuals  of  small  means,  —  as  population  in  some 
quarters  presses  upon  the  means  of  subsistence,  and  angry  menaces 
against  order  find  vent  in  loud  denunciations  —  it  becomes  more  and 
more  the  imperative  duty  of  the  Court  to  enforce  with  a  firm  hand  every 

45 


706  AMERICAN   FEDERAL   GOVERNMENT 

guarantee  of  the  Constitution.  Every  decision  weakening  their  restrain- 
ing power  is  a  blow  to  the  peace  of  society  and  to  its  progress  and  improve- 
ment. It  should  never  be  forgotten  that  protection  to  property  and  to 
persons  can  not  be  separated.  Where  property  is  insecure,  the  rights 
of  persons  are  unsafe.  Protection  to  the  one  goes  with  protection  to 
the  other;  and  there  can  be  neither  prosperity  nor  progress  where  either 
is  uncertain. 

That  the  Justices  of  the  Supreme  Court  must  possess  the  ability  and 
learning  required  by  the  duties  of  their  office,  and  a  character  for  purity 
and  integrity  beyond  reproach,  need  not  be  said.  But  it  is  not  sufficient 
for  the  performance  of  his  judicial  duty  that  a  judge  should  act  honestly 
in  all  that  he  does.  He  must  be  ready  to  act  in  all  cases  presented  for 
his  judicial  determination  with  absolute  fearlessness.  Timidity,  hesita- 
tion, and  cowardice  in  any  public  office,  excite  and  deserve  only  con- 
tempt, but  infinitely  more  in  a  judge  than  in  any  other,  because  he  is 
appointed  to  discharge  a  public  trust  of  the  most  sacred  character.  To 
decide  against  his  conviction  of  the  law  of  judgment  as  to  the  evidence, 
whether  moved  by  prejudice  or  passion,  or  the  clamor  of  the  crowd,  is 
to  assent  to  a  robbery  as  infamous  in  morals  and  as  deserving  of  punish- 
ment as  that  of  the  highwaymen  or  the  burglar;  and  to  hesitate  or 
refuse  or  act  when  duty  calls  is  hardly  less  the  subject  of  just  reproach. 
If  he  is  influenced  by  apprehensions  that  his  character  will  be  attacked, 
or  his  motives  inpugned,  or  that  his  judgment  will  be  attributed  to  the 
influence  of  particular  classes,  cliques,  or  associations,  rather  than  to 
his  own  convictions  of  the  law,  he  will  fail  lamentably  in  his  high  office. 


THE  SUPREME  COURT   OF  THE  UNITED  STATES1 
BY  DAVID  J.  BREWER  2 

IT  would  be  an  easy  and  a  pleasant  task  to  point  out  how  in  many 
other  ways  the  court  has  by  its  decisions  affected  the  life  of  the  republic, 
but  the  limits  of  my  paper  forbid.  This  must  do  for  the  past.  As  ad- 
mitted by  all  careful  students  of  history,  the  Supreme  Court,  whose 
organization  and  powers  constitute  the  most  striking  and  distinguishing 
feature  of  the  Constitution,  has  been  a  most  potent  factor  in  shaping 
the  course  of  national  events.  It  stands  to-day  a  quiet  but  confessedly 
mighty  power,  whose  action  all  wait  for,  and  whose  decisions  all  abide. 
Turning  to  the  future,  every  thoughtful  man  wonders  what  is  coming 
to  the  republic,  and  many  inquire  what  the  Supreme  Court  will  do  in 
shaping  that  future,  and  how  its  decisions  may  affect  the  national  life. 

1  Part  of  an  article  in  Scribner's  Magazine,  March,  1903.    Reprinted  by  permission. 
Copyright. 

2  Associate  Justice. 


THE   COURTS  707 

The  questions  which  now  seem  likely  to  arise  and  to  be  pressed  upon 
judicial  attention  may  be  grouped  in  four  classes :  First,  those  growing 
out  of  the  controversies  between  labor  and  capital;  second,  those  that 
will  spring  from  the  manifest  efforts  to  increase  and  concentrate  the 
power  of  the  nation  and  to  lessen  the  powers  of  the  States ;  third,  those 
arising  out  of  our  new  possessions,  separate  from  us  by  so  long  dis- 
tances and  with  so  large  a  population,  not  merely  of  foreign  tongue, 
but  of  a  civilization  essentially  different  from  that  of  the  Anglo-Saxon; 
and,  fourth,  those  which  will  come  because  our  relations  to  all  other 
nations  have  grown  to  be  so  close  and  will  surely  increase  in  intimacy. 

Of  these  in  their  order.  That  the  present  relations  of  employer  and 
employee  differ  from  those  which  subsisted  when  the  Constitution  was 
framed  is  obvious.  Three  facts  stand  out  in  bold  relief:  First,  the 
changes  wrought  by  the  countless  inventions  of  the  last  half-century; 
Second,  the  concentration  of  capital;  and,  third,  the  organization  of 
labor.  When  all  business  was  upon  a  small  scale,  when  there  were  no 
large  factories,  and  when  the  great  volume , of  labor  was  hand  labor, 
competition  was  regarded  as  a  great  solvent  of  all  commercial  troubles. 
Now  competition  has  lost  much  of  its  force  and  as  a  result  of  the  three 
facts  that  I  have  just  noticed.  I  can  not  enlarge  upon  this  subject,  and 
yet  a  few  words  seem  necessary.  The  industrial  field  was  then  occupied 
by  the  apprentice,  the  journeyman,  and  the  employer.  The  apprentice 
was  taught  to  do  every  part  of  the  general  work  in  which  he  was  em- 
ployed, and  when  so  taught  was  recognized  as  a  competent  workman, 
a  journeyman.  The  latter,  master  of  his  trade,  could  with  a  little  econ- 
omy soon  establish  a  shop  of  his  own,  and  himself  become  an  employer. 
Take,  for  illustration,  the  manufacture  of  shoes.  No  one  was  considered 
a  competent  workman  or  anything  more  than  an  apprentice  until  he 
could  do  all  the  work  in  the  making  of  a  shoe,  from  cutting  out  the 
leather  to  polishing  the  uppers.  The  employer  often  worked  with  his 
employee,  in  the  same  shop,  doing  the  same  work.  The  number  of  his 
employees  was  few,  and  one  by  one  the  capable  and  industrious  were 
opening  shops  of  their  own  and  starting  in  independent  business.  If 
the  journeyman  was  dissatisfied  with  his  employer  or  with  the  town  in 
which  he  worked,  there  was  little  difficulty  in  finding  another  shop  or 
another  village.  The  avenues  of  employment  were  not  crowded,  and 
there  was  no  blacklisting.  The  employer,  if  he  found  his  business  un- 
profitable, could  easily  move  to  another  city  and  start  a  like  business. 
If  his  prices  were  excessive  some  new  man  would  start  a  rival  establish- 
ment. Thus  competition  levelled  prices  and  kept  them  reasonable. 
Not  unnaturally  there  wras  a  community  of  interest  and  at  the  same 
time  an  independence  in  both  emplover  and  employee.  But  to-day, 
through  the  inventive  genius  of  the  country,  machines  have  superseded 
hand  labor.  The  manufactory  has  taken  the  place  of  the  shop,  and  labor 
finds  its  chief  employment  in  the  handling  of  machines,  each  employee 


yo8  AMERICAN   FEDERAL   GOVERNMENT 

doing  only  a  special  limited  work.  Some  of  the  machines  are  costly  and 
large  amounts  of  capital  are  invested.  For  economy's  sake  the  work  is 
centered  in  large  manufacturing  establishments,  where  are  gathered  mul- 
titudes of  machines  and  armies  of  laborers.  The  employer  has  become 
separated  from  his  employees.  They  stand  to  him  as  meaning  little 
more  than  the  machines  upon  which  they  work.  One  significant  and 
sad  feature  of  not  a  few  of  our  manufacturing  establishments  is  the  large 
boarding-house,  where  are  gathered  a  multitude  of  laborers,  like  soldiers 
in  barracks.  Nor  is  there  simply  the  large  and  separate  manufacturing 
establishments;  combinations  have  been  formed  by  which  all  the  fac- 
tories of  a  single  industry  are  brought  under  a  single  control.  Difficult 
then  is  the  position  of  the  employee,  who,  familiar  with  only  a  particular 
and  narrow  work,  finds,  when  discharged  from  one  factory,  the  doors 
of  all  others  closed  against  him.  He  feels  that  he  must  stay  and  accept 
the  terms  which  the  manufacturer  has  placed  upon  his  service.  SO 
severe  and  stringent  is  the  pressure  upon  him  that  not  infrequently  we 
hear  his  condition  called,,  the  serfdom  of  labor.  Nor  is  the  pressure 
simply  upon  the  employee.  A  combination  of  employers  is  often  so 
rich  and  so  powerful  that  one  who  would  like  to  carry  on  an  independent 
business  is  driven  to  the  wall  and  has  no  other  alternative  than  to  go  out 
of  business  or  surrender  to  the  combination.  This  which  is  true  of  man- 
ufacturing is  also  true  of  the  mercantile  business  and  of  transportation ; 
and  combinations,  some  of  them  of  immense  wealth  and  far-reaching 
influence,  have  become  the  order  of  the  day. 

It  is  not  strange,  indeed  it  was  the  inevitable  result  of  this  subdivision 
of  labor  and  such  combinations  of  employers,  that  the  laborers  in  the 
several  departments  should  themselves  organize.  Labor  organizations 
are  as  much  the  natural  outgrowth  of  the  economic  conditions  of  the 
day  as  combinations  of  capital.  We  thus  have,  on  the  one  hand,  a  few 
possessing  or  controlling  immense  amounts  of  capital  and  large  indus- 
tries, and,  on  the  other  hand,  multitudes  of  laborers  banded  into  organi- 
zations for  self-protection.  Self-interest  (I  will  not  call  it  selfishness) 
has  operated  to  develop  a  great  antagonism  between  these  two  factors 
in  industry;  each  in  seeking  a  greater  control,  a  larger  share  of  the 
profits  resulting  from  the  combined  services  of  both.  As  organizations 
of  laborers  increase  the  influence  and  significance  of  a  strike,  which  is 
one  of  their  weapons  in  carrying  on  what  is  called  the  conflict  between 
labor  and  capital,  become  greater.  The  summer  of  last  year  we  stood 
face  to  face  with  one  of  immense  magnitude,  one  affecting  the  business 
of  the  nation  as  none  other  has  yet  done.  How  shall  these  strikes  be 
avoided?  A  man  can  scarcely  count  the  suggestions  which  have  been 
and  are  being  made  with  a  view  of  averting  them  in  the  future.  The 
coal  strike  has  precipitated  more  schemes  of  legislation,  more  sugges- 
tions of  the  extent  of  legislative  and  executive  as  well  as  judicial  power 
than  any  which  has  preceded  it.  All  legislative  bodies,  State  and  na- 


THE   COURTS  709 

tional,  will  be  confronted  with  propositions  to  prevent  or  regulate 
struggles  between  labor  and  capital.  Is  it  not  reasonably  certain  that 
out  of  these  conflicts  and  out  of  the  legislation  which  may  be  enacted 
by  Congress  or  the  several  State  legislatures  there  will  arise  a  multitude 
of  questions,  many  of  which  will  finally  reach  the  Supreme  Court  of  the 
United  States  ? 

Let  me  mention  one  or  two  which  are  frequently  mentioned  in  the 
newspapers  and  discussed  in  private.  Compulsory  arbitration  is  thought 
by  many  to  be  necessary,  and  the  only  possible  solution  of  these  labor 
troubles.  We  are  referred  to  New  Zealand  as  furnishing  an  illustration 
of  the  possibility  and  wisdom  of  such  an  enactment.  But  what  does 
such  a  scheme  imply?  On  the  one  hand  possibly  the  compulsion  of 
the  employer  to  pay  more  than  he  can  afford  or  else  quit  business.  On 
the  other  hand,  of  the  laborer  to  work  for  an  employer  he  does  not  like, 
and  at  less  wage  than  he  feels  himself  entitled  to.  How  does  such  com- 
pulsion consist  with  that  freedom  of  personal  action  which  for  more  than 
a  hundred  years  we  have  believed  was  the  inalienable  right  of  every 
individual?  It  is  said  in  support  of  the  proposed  enactment  that  to 
prescribe  the  conditions  under  which  an  employer  may  carry  on  his 
business,  leaving  him  free  to  abandon  the  business  and  pursue  some 
other,  and  like  compulsion  of  the  laborer  to  work  at  a  certain  wage 
and  place  if  he  continues  in  a  certain  kind  of  employment,  does  not 
abridge  any  constitutional  right  of  either  when  the  larger  interests  of 
society  demand  such  compulsion.  But  if  compulsion  may  be  intro- 
duced into  one  employment,  why  not  into  all  ?  I  can  not  spend  the  time 
to  enlarge  upon  the  arguments  of  either  side,  nor  would  it  be  proper 
to  express  any  opinion  as  to  the  respective  merits  of  such  arguments. 
It  is  enough  to  say  that  if  legislation  be  enacted  looking  toward  com- 
pulsory arbitration  it  is  obvious  that  there  will  be  much  to  challenge, 
the  most  careful  consideration  of  the  courts. 

Again,  we  hear  it  said  that  the  Nation  or  State  should  take  the  coal 
mines  under  condemnation  proceedings  and  operate  them  for  the  public 
benefit.  The  power  to  do  this  is  denied  on  the  ground  that  private 
property  can  be  taken  only  for  public  uses,  and  the  furnishing  of  coal 
is  said  to  be  not  a  public  service,  that  coal  is  no  more  a  necessity  of  life 
than  bread,  meats,  or  clothing;  that  if  the  State  can  enter  into  the  busi- 
ness of  supplying  coal  it  can  into  all  these  other  matters,  and  for  that 
purpose  condemn  all  places  in  which  such  things  are  grown  or  manu- 
factured. And  it  is  contended  by  some  that  the  State  can  under  our 
constitutional  limitations  take  to  itself  the  control,  ownership,  and  oper- 
ation of  all  now  known  as  private  industries.  On  the  other  hand,  and 
in  reply  to  some  of  these  arguments,  it  is  said  that  the  ordinary  products 
of  the  soil  can  be  grown  or  manufactured  in  many  places,  but  that  nature 
has  created  a  monopoly  in  anthracite  coal  by  locating  it  in  only  one  or 
two  portions  of  the  United  States;  that  by  reason  of  the  monopoly  thus 


yio  AMERICAN   FEDERAL   GOVERNMENT 

created  by  nature  the  power  of  the  public  to  interfere  and  take  possession 
is  established. 

I  do  not  stop  to  notice  the  suggestions  of  government  ownership  of 
railroads,  telegraph,  telephones,  electric  lines,  water  and  gas  works,  for 
as  to  them,  or  at  least  most  of  them,  they  are  confessedly  performing  a 
public  service,  and  the  question  of  governmental  possession  and  control 
is  mainly  one  of  expediency  rather  than  of  constitutionality,  and  the 
courts  have  nothing  to  do  with  questions  of  expediency. 

Obviously  in  these  and  many  kindred  suggestions  there  is  manifest 
a  spirit  of  paternalism.  The  individual  is  not  to  be  left  to  make  his  own 
contracts,  determine  his  place  and  kind  of  work,  or  use  his  property  in 
the  way  he  sees  fit.  The  government  is  to  exercise  the  functions  of  a 
guardian,  with  the  individual  as  its  ward,  to  be  in  many  respects  pro- 
tected, guided,  and  controlled.  This  is  not  wholly  the  idea  that  per- 
vaded the  old  monarchical  system,  for  there  the  king  as  a  single  ruler 
assumed  the  wisdom  and  the  right  to  control  the  actions  of  all  his  sub- 
jects, while  here  the  mak>rity  are  the  ruler,  yet  it  is  equally  an  assump- 
tion that  the  majority  nave  the  same  right  to  control.  It  is  true  the 
belief  is  that  such  control  is  for  the  best  interests  of  those  controlled  or 
of  the  general  public.  Yet  it  is  unlike  the  thought  which  possessed  the 
fathers  at  the  foundation  of  the  Republic.  Their  idea  was  expressed  in 
the  Declaration  of  Independence,  "all  men  are  created  equal";  "in- 
alienable rights  of  life,  liberty,  and  the  pursuit  of  happiness,"  and  their 
purpose  was  to  give  the  freest  scope  to  individual  action.  The  marvelous 
mystery  which  lies  folded  in  the  doctrine  of  the  police  powers  of  the  gov- 
ernment was  to  them  unknown.  I  am  not  questioning  either  the  neces- 
sity or  the  wisdom  of  the  change.  I  only  notice  the  fact  that  the 
thought  of  to-day  is  different  from  that  which  then  existed,  and  that  the 
tendency  of  legislation  is  in  a  different  direction.  Now  the  Constitution 
was  framed  by  those  who  had  large  notions  of  individual  liberty  and  a 
jealousy  of  governmental  power,  and  the  profound  question  is  how  far 
the  language  and  guarantees  of  the  Constitution  are,  if  unchanged,  con- 
sistent with  legislation  expressing  these  changed  ideas.  That  it  may  be 
amended  so  as  to  be  adjustable  to  any  social  order  is  provided  by  the 
Constitution  itself.  Without  amendment  how  far  is  it  adjustable  ?  That 
many  conditions  and  questions  unknown  to  the  fathers  have  been  pre- 
sented and  found  capable  of  solution  without  any  change  in  the  language 
of  the  Constitution  the  history  of  the  past  115  years  attests.  In  the 
judgment  of  not  a  few  it  is  without  amendment  adjustable  to  any  condi- 
tions, social  and  political,  that  may  arise.  Indeed,  as  one  reads  some 
of  the  propositions  which  are  advanced,  he  is  inclined  to  believe  that 
the  instrument  possesses  an  elasticity  which  would  make  the  manu- 
facturers of  india-rubber  choke  with  envy.  Fortunately  and  wisely, 
its  grants,  prohibitions,  and  guarantees  were  expressed  tersely  and  yet 
in  general  terms,  so  that  it  has  proved  to  be  no  cast-iron  instrument 


THE   COURTS  711 

applicable  only  to  conditions  then  existing.  But  the  question  remains 
how  far  its  general  and  comprehensive  terms  may  be  adjusted  to  the 
varying  situations  which  the  present  and  future  days  will  present,  and 
this  matter  of  adjustability  will  bring  before  the  court  some  of  the  pro- 
foundest  and  most  important  questions  ever  presented  to  any  tribunal. 

I  pass  now  to  notice  some  questions  which  may  arise  from  the  manifest 
effort  to  concentrate  power  in  the  United  States  and  to  lessen  the  powers 
of  the  respective  States.  Ever  since  the  Civil  War  many  have  spelled 
nation  with  a  big  N,  and  there  have  been  constant  efforts  to  enlarge  the 
activity,  if  not  increase  the  powers,  of  Congress.  The*  centralizing  tend- 
ency has  been  marked.  It  is  not  unnatural.  It  harmonizes  with  the 
consolidating  spirit  of  business,  the  unifying  movement  in  all  the  activi- 
ties of  life.  In  matters  over  which  it  is  manifest  that  Congress  has  no 
power  under  the  Constitution,  there  is  much  clamor  to  so  amend  that 
instrument  as  to  invest  it  with  the  desired  control.  Polygamy  must  be 
stamped  out,  and  as  only  national  action  will  reach  everywhere  in  the 
Republic  the  Constitution  must  be  amended  so  as  to  grant  full  control 
to  the  nation.  Uniformity  in  the  matter  of  marriage  and  divorce  is 
desirable.  The  States  do  not  agree  in  establishing  such  uniformity, 
therefore  let  by  constitutional  amendment  Congress  be  given  power  to 
compel  it.  Commerce  between  the  States  is  now  subject  to  Congres- 
sional regulation,  that  within  each  State  under  its  control,  but  those  two 
branches  of  commerce  are  so  interwoven  as  to  produce  much  confusion 
and  irritation.  If  all  power  in  respect  to  commerce  were  taken  away 
from  the  States  and  the  entire  control  both  of  that  between  the  States 
and  that  within  the  States  vested  in  Congress,  a  desirable  uniformity 
could  be  obtained,  and  in  this  direction  is  a  clamor  for  a  change  in  the 
organic  law.  The  trusts  are  a  dangerous  factor  in  our  commercial  and 
political  life.  The  States  are  not  adequate  to  suppress  them,  hence  the 
Constitution  should  be  amended  and  full  power  over  them  vested  in 
Congress.  And  so  I  might  go  on  enumerating  others.  I  simply  mention 
these,  not  as  suggesting  matters  for  judicial  decision,  for  under  the 
power  of  amendment  reserved  in  the  Constitution  the  people  may,  if 
they  see  fit,  engraft  any  of  them  upon  the  organic  law  and  the  courts 
have  nothing  to  say.  However  wise  or  unwise  any  of  these  changes  may 
be,  if  the  people  will  it  and  amend  the  Constitution  in  the  appointed  way, 
that  is  the  end  of  the  matter. 

But  judicial  questions  may  arise  from  efforts  under  the  Constitution 
as  it  is  to  secure  action  by  Congress  in  some  one  or  other  of  these  or 
kindred  directions,  and  action  which  it  is  contended  the  Constitution 
withholds  from  the  power  of  Congress  and  has  reserved  to  the  States  or 
the  people  thereof.  And  because  of  the  centralizing  tendency  of  the 
day  and  the  disposition  to  invoke  the  efficient  action  of  the  National 
Government  there  will  doubtless  be  many  such  efforts.  But  as  Chief 
Justice  Chase  said  in  Texas  v.  White,  7  Wall.  725:  "The  Constitution, 


712  AMERICAN  FEDERAL   GOVERNMENT 

in  all  its  provisions,  looks  to  an  indestructible  union,  composed  of  in- 
destructible States."  And  the  Tenth  Amendment  to  the  Constitution 
provides  that  "the  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people."  It  is  the  duty  of  the  Supreme  Court,  as 
of  all  other  courts,  to  enforce  that  provision  of  the  Constitution  as  fairly 
and  fully  as  any  other.  Any  legislation  of  Congress,  however  desirable 
or  beneficial  it  may  appear,  must,  unless  it  comes  within  the  powers 
given  by  the  Constitution  to  that  body,  be  declared  invalid.  Equally 
also  must  any  action  of  a  State  in  attempting  to  exercise  dominion  over 
matters  the  exclusive  control  of  which  is  vested  in  Congress  be  adjudged 
unconstitutional.  No  one  can  predict  the  precise  legislation  coming 
either  from  Congress  or  the  State  legislatures  which  will  challenge  judicial 
inquiry  upon  the  principles  just  stated.  Both  sides  have  strong  adher- 
ents. The  controversy  between  National  authority  and  State's  rights  is 
as  old  as  the  Government.  Hamilton  and  Jefferson  have  each  to-day 
a  large  following.  State's  rights  have  always  been  and  still  are  repre- 
sented in  Congress,  and  there  have  always  been  and  still  are  in  both 
Houses  some  of  the  ablest  lawyers  of  the  land,  who  will  be  careful  that 
no  legislation  of  that  body  trespasses  on  the  powers  of  the  States.  Yet 
when  public  feeling  is  deeply  aroused  and  the  efficiency  of  national 
action  is  felt,  popular  pressure  may  be  so  great  that  Congress  yields  to 
it  and  enacts  laws  beyond  its  powers.  At  any  rate,  it  is  not  only  possible 
but  probable  that  some  of  its  legislation  may  be  so  near  the  boundary 
of  power  as  to  challenge  judicial  inquiry.  Take,  for  instance,  the  Sher- 
man Anti-Trust  Act,  which  was  framed  with  the  view  of  exercising  only 
those  powers  which  are  conferred  upon  Congress  over  interstate  com- 
merce, and  yet  its  application  was  invoked  in  behalf  of  interference  with 
manufactures  wholly  under  State  control.  So  also  a  difficult  problem  is  to 
draw  the  dividing  line  between  the  exclusive  control  which  Congress  has 
over  interstate  commerce  and  the  police  powers  which  are  reserved  to 
the  States.  The  reports  of  the  court  are  full  of  cases  on  one  side  or  the 
other  of  such  line.  In  no  class  of  cases  has  the  court  been  more  closely 
divided.  Leisy  v.  Hardin,  135  U.  S.  100,  in  which  the  power  of  a  State 
to  forbid  the  sale  in  the  original  package  of  imported  liquor  was  denied 
is  a  well-known  illustration.  Two  cases  are  now  pending  in  which  is 
challenged  the  power  of  Congress  to  restrain  the  transportation  by  ex- 
press companies  of  lottery  tickets  from  State  to  State.  The  great  irriga- 
tion problem  in  respect  to  the  arid  lands  in  the  West  which  is  just  now 
attracting  legislative  attention  will  very  likely  produce  some  sharp  con- 
troversies in  respect  to  the  limits  of  State  and  National  action.  And  so 
I  might  go  on  in  enumeration.  It  is  safe  to  say  that  the  antagonism 
between  National  authority  and  State's  rights  which  began  with  the 
Republic  and  which  has  become  intensified  by  the  vast  interests  affected 
by  it,  will  bring  into  the  Supreme  Court  an  increasing  number  of  im- 


THE   COURTS  713 

portant  and  difficult  questions.  Where  millions  are  at  stake  the  ingenu- 
ity of  lawyers  may  be  depended  on  to  find  some  way  of  entrance  to  the 
court  of  last  resort. 

In  the  third  place,  questions  will  arise  out  of  our  insular  possessions, 
and  questions  different  from  those  which  have  attended  previous  ac- 
quisitions of  territory,  because  unlike  them  these  are  densely  populated 
with  peoples  speaking  another  tongue,  of  an  essentially,  different  civiliza- 
tion, alien  in  life  and  thought  to  Anglo-Saxon  institutions.  To  what 
extent  the  provisions  of  the  Constitution  operate  in  those  possessions 
is  yet  undetermined.  It  was  held  by  the  court  in  DeLima  v.  Bidwell, 
182  U.  S.  i,  that  by  the  treaty  of  peace  between  the  United  States  and 
Spain  the  island  of  Porto  Rico  ceased  to  be  a  foreign  country,  within 
the  meaning  of  the  tariff  laws.  In  Dowries  v.  Bidwell,  id.  244,  the  court, 
by  five  to  four,  held  that  Porto  Rico  was  not  a  part  of  the  United  States, 
within  the  provision  of  the  Constitution  requiring  uniformity  in  duties, 
imposts,  and  excises  throughout  the  United  States.  From  that  con- 
clusion four  of  the  Justices  dissented,  and  the  majority  did  not  agree 
in  the  reasoning  by  which  that  conclusion  was  reached.  Justice  White, 
one  of  the  majority,  speaking  for  Justices  Shiras,  McKenna,  and  himself, 
laid  down  these  propositions:  " Every  function  of  the  government 
being  thus  derived  from  the  Constitution,  it  follows  that  that  instrument 
is  everywhere  and  at  all  times  potential  in  so  far  as  its  provisions  are 
applicable.  ...  As  Congress  in  governing  the  territories  is  subject  to 
the  Constitution,  it  results  that  all  the  limitations  of  the  Constitution 
which  are  applicable  to  Congress  in  exercising  this  authority  necessarily 
limit  its  power  on  this  subject.  It  follows  also  that  every  provision  of 
the  Constitution  which  is  applicable  to  the  territories  is  also  controlling 
therein.  ...  In  the  case  of  the  territories,  as  in  every  other  instance, 
when  a  provision  of  the  Constitution  is  invoked,  the  question  which 
arises  is,  not  whether  the  Constitution  is  operative,  for  that  is  self-evident 
but  whether  the  provision  relied  on  is  applicable."  In  construing  these 
declarations  of  three  of  the  majority  along  with  the  views  of  the  four 
dissenting  Justices  questions  will  naturally  arise  as  to  the  force  of  the 
word  "applicable."  These  are  several  provisions  in  the  early  amend- 
ments to  the  Constitution,  designed  to  secure  the  liberty  of  the  individual, 
such  as  that  Congress  shall  make  no  law  respecting  the  establishment 
of  religion,  or  abridging  the  freedom  of  speech;  forbidding  that  any 
person  thall  be  held  to  answer  for  a  crime  except  upon  indictment  of  a 
grand  jury ;  that  he  be  twice  put  in  jeopardy  of  life  or  limb,  or  compelled 
to  be  a  witness  against  himself;  granting  him  the  right  to  a  speedy 
public  trial  by  an  impartial  jury  of  the  district  wherein  the  crime  was 
committed;  to  be  informed  of  the  nature  and  cause  of  the  accusation; 
to  be  confronted  with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses  and  to  have  the  assistance  of  counsel; 
and  the  further  provision  securing  in  suits  at  common  law  the  right  of 


714  AMERICAN  FEDERAL   GOVERNMENT 

trial  by  jury.  Are  any  or  all  of  these  provisions  applicable  to  these  insular 
possessions  ?  They  have  been  applied  in  other  territories  having  mainly 
a  population  as  foreign  to  our  language  and  institutions  as  that  of  these 
recent  acquisitions.  If  some  are  and  others  are  not,  upon  what  principle 
is  the  distinction  to  be  made?  and  if  none  are  what  provisions  of  the 
Constitutions  are  applicable  ?  Obviously,  as  citizens  of  American  birth 
move  into  these  possessions,  acquire  property  and  engage  in  business, 
many  questions  of  this  nature  will  arise,  and  the  court  will  be  confronted 
with  problems  as  difficult  as  any  it  has  yet  met  and  as  important  for 
the  well-being  of  the  Republic.  An  application  was  recently  made  for  a 
certiorari  to  bring  up  a  case  involving  as  alleged  the  applicability  in  the 
Philippine  Islands  of  the  prohibition  against  being  twice  put  in  jeopardy 
of  life  or  limb. 

But  I  must  not  tarry.  It  is  enough  to  say  that  the  taking  of  these 
insular  possessions  is  a  new  venture,  and  no  one  can  anticipate  all  the 
novel  questions  which  will  arise  therefrom  and  be  presented  to  the 
Supreme  Court  for  its  decision.  Do  I  in  virtue  of  these  possibilities  and 
the  responsibilities  which  will  rest  upon  the  court  unduly  magnify  its 
office  and  function  in  the  development  of  the  history  of  the  Republic  ? 

The  final  class  which  I  suggested  is  of  cases  growing  out  of  our  rela- 
tions with  other  nations,  which  as  all  perceive  are  more  intimate  than 
in  days  gone  by,  and  are  surely  to  become  much  more  so.  I  do  not  as- 
sume that  this  nation  will  forget  Washington's  farewell  advice  to  avoid 
entangling  alliances  with  foreign  nations.  But  our  rapidly  extending 
commerce  and  our  new  possessions,  especially  those  in  the  Orient,  place 
us  in  close  touch  with  the  outer  world.  We  can  not,  if  we  would,  live 
to  ourselves  alone.  We  must  sit  in  the  council  of  the  nations.  The 
questions  which  will  consequently  arise  are  not  all  political;  many  are 
judicial.  And  our  dealings  with  foreign  nations  must  be  had  with  a 
recognition  of  the  fact  that  here,  far  more  than  anywhere  else,  those 
questions  can  not  be  finally  determined  for  the  nation  save  by  the  action 
of  the  judicial  department.  A  pertinent  illustration  is  found  in  the  case 
of  Tucker  v.  Alexandroff,  recently  decided  and  reported  in  183  U.  S. 
424,  434.  We  had  a  treaty  with  Russia  for  the  surrender  of  deserters 
from  ships  of  war  and  merchant  vessels.  The  Russian  Government 
employed  a  Philadelphia  firm  to  build  a  war  ship,  the  Variag,  and  when 
near  completion  it  sent  a  body  of  men  over  to  serve  as  its  crew.  One 
deserted,  was  arrested  at  the  instance  of  the  Russian  vice-consul  at 
Philadelphia  and  committed  for  surrender  to  the  Russian  authorities. 
He  sued  out  a  habeas  corpus  for  a  discharge  from  that  detention,  and  the 
case  in  due  time  came  to  the  Supreme  Court.  The  court  was  divided  in 
opinion,  but  the  majority  held  that  the  detention  was  justifiable  and 
that  the  deserter  should  be  surrendered  to  the  Russian  authorities. 
The  interpretation  of  that  treaty  and  the  defining  of  the  obligations  of 
our  Government  to  Russia  were  judicial  questions,  and  the  Supreme 


THE   COURTS  715 

Court  prescribed  the  measure  of  this  nation's  duty.  The  recent  Spanish 
War  brought  to  the  court  many  questions  of  prize  in  which  the  duties 
and  obligations  of  neutrals  were  denned.  Not  merely  in  the  construc- 
tion of  treaties,  in  matters  of  extradition  and  prize  will  the  work  of  the 
court  be  seen,  but  in  all  the  variety  of  questions  which  will  grow  out  of 
the  facts  that  our  people  are  traveling  through  all  countries  of  the  world, 
our  merchants  trading  in  every  city,  our  ships  traversing  every  ocean 
and  visiting  every  port.  Further,  we  are  contemplating  such  works 
outside  our  territorial  limits  as  the  Isthmian  Canal  for  furthering  the 
interests  of  the  world's  commerce,  our  own  included,  and  who  can  pre- 
dict all  the  questions  that  such  enterprises  will  present  to  the  courts  ? 

Knowledge  of  international  law  has  thus  become  a  necessity,  and  the 
Supreme  Court  will  be  called  upon  to  settle  for  this  country  what  it  is 
and  what  it  requires.  Our  Federal  system  will  also  precipitate  a  class 
of  questions  not  arising  elsewhere.  For  instance,  when  some  citizens 
of  Italy  were  killed  by  a  mob  in  New  Orleans  a  demand  was  made  by 
Italy  upon  this  Government  for  the  prosecution  and  punishment  of  the 
offenders,  and  the  reply  was  in  substance  that  the  nation  had  no  power 
in  the  matter ;  that  prosecution  for  such  crimes  depended  on  the  action 
of  the  State  of  Louisiana,  and  all  that  the  nation  could  do  was  to  call 
the  attention  of  the  authorities  of  that  State  to  it  and  request  action  by 
them.  A  suggestion  was  made  that  Congress  enact  a  law  giving  Federal 
courts  jurisdiction  in  such  cases,  but  the  constitutionality  of  such  an 
enactment  was  seriously  challenged  and  nothing  was  done. 

Time  forbids  any  further  illustrations  of  the  variety  of  questions  which 
are  likely  to  come  before  the  Supreme  Court.  Surely  a  tribunal  called 
upon  to  decide  such  cases  and  questions  must  have  great  weight  in  shap- 
ing the  destinies  of  the  Republic.  It  will  continue  to  be,  as  it  has  been, 
a  most  important  factor  in  our  national  life.  That  its  influence  has  been 
helpful  few  will  doubt.  That  it  should  be  shorn  of  none  of  its  power  is 
generally  affirmed  by  disinterested  observers.  No  specious  plea  against 
government  by  injunction  should  ever  be  permitted  to  take  from  it  that 
wholesome  restraining  influence  which  has  been  so  powerful  for  good. 

May  I  add  in  closing  that  it  is  of  the  utmost  importance  that  such  a 
tribunal  should  be  independent,  free  from  partisan  bias  or  political 
influence.  Its  members  should,  if  not  by  constitutional  amendment  at 
least  by  the  common  action  of  all,  be  debarred  from  political  office,  so 
that  no  temptation  of  office  or  popular  applause  shall  ever  swerve  from 
the  simple  path  of  justice,  and  the  Constitution.  In  these  days  of  news- 
paper reputation  and  ofttimes  swiftly  changing  popularity  it  is  well  to 
have  some  tribunal  of  stability,  one  whose  judgments  do  not  vary  with 
the  varying  opinions  of  the  passing  hours  and  do  not,  as  Mr.  Dooley 
says,  simply  "follow  the  election  returns."  The  life  tenure  of  its  mem- 
bers does  not  make  it  an  undemocratic  factor  in  the  life  of  the  Republic. 
It  does  not  govern  the  nation.  The  people  are  always  the  rulers.  More 


716  AMERICAN  FEDERAL   GOVERNMENT 

than  once  have  they  reversed  its  judgments ;  but  by  reason  of  its  stability 
and  independence  it  has  ever  stood  a  check  upon  all  hasty  action;  a 
brake  on  the  swiftly  moving  wheels  of  popular  passion,  and  holding  ever 
the  Republic  close  to  the  ways  prescribed  by  the  fathers  in  the  Con- 
stitution. As  it  has  been,  so  may  it  be.  Each  member  of  that  tribunal 
should  be  animated  by  a  noble  ambition  to  be  ever  loyal  to  justice  and 
the  Constitution,  no  matter  what  may  be  temporary  criticisms.  He 
should  appropriate  in  his  life  the  spirit  of  the  memorable  words  of  Lord 
Mansfield,  uttered  in  the  presence  of  a  mob  demanding  a  particular 
decision:  "I  wish  popularity,  but  it  is  that  popularity  which  follows, 
not  that  which  is  run  after.  It  is  that  popularity  which  sooner  or  later 
never  fails  to  do  justice  to  the  pursuit  of  noble  ends  by  noble  means." 


REMARKS  OF  MR.  JUSTICE  HARLAN  ON  THE  METHODS 
OF  THE   SUPREME   COURT1 

THERE  is  one  subject,  Mr.  Chairman,  to  which  I  am  asked  to  reply 
and  to  which  I  deem  it  appropriate  to  refer.  It  is  quite  pertinent  to  the 
toast.  I  allude  to  the  mode  in  which  the  business  of  the  Supreme  Court 
of  the  United  States  is  conducted.  In  my  intercourse  with  the  members 
of  the  bar,  I  have  found  to  my  great  surprise  that  the  impression  pre- 
vails with  some  that  cases,  after  being  submitted,  are  divided  among 
the  judges,  and  that  the  court  bases  its  judgment  in  each  one  wholly 
upon  the  report  made  by  some  one  judge  to  whom  that  case  has  been 
assigned  for  examination  and  report.  I  have  met  with  lawyers  who 
actually  believed  that  the  opinion  was  written  before  the  case  was  decided 
in  conference,  and  that  the  only  member  of  the  court  who  fully  examined 
the  record  and  briefs  was  the  one  who  prepared  the  opinion. 

It  is  my  duty  to  say  that  the  business  in  our  court  is  not  conducted 
in  any  such  mode.  Each  justice  is  furnished  with  a  printed  copy  of  the 
record  and  with  a  copy  of  each  brief  filed,  and  each  one  examines  the 
records  and  briefs  at  his  chambers  before  the  case  is  taken  up  for  con- 
sideration. The  cases  are  thoroughly  discussed  in  conference  —  the 
discussion  in  some  being  necessarily  more  extended  than  in  others. 
The  discussion  being  concluded  —  and  it  is  never  concluded  until  each 
member  of  the  court  has  said  all  that  he  desires  to  say  —  the  roll  is 
called  and  each  justice  present  and  participating  in  the  decision  votes 
to  affirm,  reverse  or  modify,  as  his  examination  and  reflection  suggests. 
The  chief  justice,  after  the  conference,  and  without  consulting  his  breth- 
ren, distributes  the  cases  so  decided  for  opinions.  No  justice  knows, 
at  the  time  he  votes  in  a  particular  case,  that  he  will  be  asked  to  become 
the  organ  of  the  court  in  that  case ;  nor  does  any  member  of  the  court 
ask  that  a  particular  case  be  assigned  to  him. 

1  American  Law  Review,  30:  904. 


THE   COURTS  717 

The  next  step  is  the  preparation  of  the  opinion  by  the  justice  to  whom 
it  has  been  assigned.  The  opinion,  when  prepared,  is  privately  printed, 
and  a  copy  placed  in  the  hands  of  each  member  of  the  court  for  examina- 
tion and  criticism.  It  is  examined  by  each  justice,  and  returned  to  the 
author,  with  such  criticisms  and  objections  as  are  deemed  necessary.  If 
these  objections  are  of  a  serious  kind,  affecting  the  general  trend  of  the 
opinion,  the  writer  calls  the  attention  of  the  justice  to  them,  that  they 
may  be  passed  upon.  The  author  adopts  such  suggestions  of  mere  form 
as  meet  his  views.  If  objections  are  made  to  which  the  writer  does  not 
agree,  they  are  considered  in  conference,  and  are  sustained  or  overruled 
as  the  majority  may  determine.  The  opinion  is  reprinted  so  as  to  express 
the  final  conclusions  of  the  court,  and  is  then  filed. 

Thus,  you  will  observe,  not  only  is  the  utmost  care  taken  to  make  the 
opinion  express  the  views  of  the  court,  but  that  the  final  judgment  rests, 
in  every  case  decided,  upon  the  examination  by  each  member  of  the 
court  of  the  record  and  briefs.  Let  me  say  that,  during  my  entire  ser- 
vice in  the  Supreme  Court,  I  have  not  known  a  single  instance  in  which 
the  court  has  determined  a  case  merely  upon  the  report  of  one  or  more 
justices  as  to  what  was  contained  in  the  record  and  as  to  what  questions 
were  properly  presented  by  it.  When  you  find  an  opinion  of  the  court 
on  file  and  published,  the  profession  have  the  right  to  take  it  as  express- 
ing the  deliberate  views  of  the  court,  based  upon  a  careful  examination 
of  the  records  and  briefs  by  each  justice  participating  in  the  judgment. 

What  I  have  said  will  give  you  some  idea  of  the  labor  necessary  to  be 
performed  by  the  members  of  the  Supreme  Court.  How  well  it  has 
been  performed  it  is  not  for  any  member  of  the  court  to  declare.  Quite 
certain  it  is  that  the  country  believed  that  more  was  imposed  upon  the 
court  than  could  be  met  with  due  regard  to  the  interests  of  litigants, 
and  to  the  prompt  despatch  of  judicial  business.  Hence,  the  establish- 
ment of  Circuit  Courts  of  Appeals,  whose  decisions  are  final  in  large 
classes  of  cases  of  which  the  Supreme  Court  heretofore  had  jurisdiction 
upon  appeal  or  writ  of  error.  Time  has  vindicated,  in  the  judgment  of 
many,  the  scheme  of  the  act  of  1891,  creating  an  intermediate  Appellate 
Court  in  each  Circuit.  It  is  beyond  question  that  that  act  will  have  the 
effect  in  a  very  short  time  to  so  reduce  the  number  of  cases  which  may,  of 
right,  be  carried  from  the  Circuit  Courts  directly  to  the  Supreme  Court  of 
the  United  States,  that  that  court  will  have  no  more  cases  upon  its  docket, 
at  the  beginning  of  each  session,  than  can  be  disposed  of  during  the  term. 

While  at  the  beginning  of  the  October  term  of  1890  the  cases  on  the 
docket  of  the  Supreme  Court  aggregated  1,406,  the  number  on  the 
docket  at  the  beginning  of  the  term  to  commence  on  the  i2th  day  of 
the  present  month  will  not  exceed  625.  And  it  is  safe  to  say  that  the  en- 
tire number  which  will  be  on  our  docket  at  the  beginning  of  the  Octo- 
ber term,  1898,  will  not  exceed  350.  Let  this  result  speak  for  itself. 


yi8  AMERICAN   FEDERAL   GOVERNMENT 


THE   SUPREME   COURT   ON   JUDICIAL  POWER 

[The  following  extract  from  the  decision  of  the  Supreme  Court  in  the  case 
of  Kansas  v.  Colorado,  206  U.  S.  46  (1907),  announces  a  most  important 
principle  that  the  judicial  power  is  subject  only  to  express  constitutional  limi- 
tations. Mr.  Gardiner  in  his  essay  on  executive  powers  (see  p.  12)  had  an- 
nounced the  same  principle  with  regard  to  the  executive.  See  also  Senator 
Spooner's  argument,  infra.] 

MR.  Justice  BREWER  delivered  the  opinion  of  the  court: 

While  we  said  in  overruling  the  demurrer,  that  "this  court,  broadly 
speaking,  has  jurisdiction,"  we  contemplated  further  consideration  of 
both  the  fact  and  the  extent  of  our  jurisdiction,  to  be  fully  determined 
after  the  facts  were  presented.  We  therefore  commence  with  this  inquiry. 
And  first,  of  our  jurisdiction  of  the  controversy  between  Kansas  and 
Colorado. 

This  suit  involves  no  question  of  boundary  or  of  the  limits  of  terri- 
torial jurisdiction.  Other  and  incorporeal  rights  are  claimed  by  the 
respective  litigants.  Controversies  between  the  states  are  becoming 
frequent,  and,  in  the  rapidly  changing  conditions  of  life  and  business, 
are  likely  to  become  still  more  so.  Involving,  as  they  do,  the  rights  of 
political  communities  which  in  many  respects  are  sovereign  and  inde- 
pendent, they  present  not  infrequently  questions  of  far-reaching  import 
and  of  exceeding  difficulty. 

It  is  well,  therefore,  to  consider  the  foundations  of  our  jurisdiction 
over  controversies  between  states.  It  is  no  longer  open  to  question  that 
by  the  Constitution  a  nation  was  brought  into  being,  and  that  that 
instrument  was  not  merely  operative  to  establish  a  closer  union  or  league 
of  states.  Whatever  powers  of  government  were  granted  to  the  nation 
or  reserved  to  the  states  (and  for  the  description  and  limitation  of  these 
powers  we  must  always  accept  the  Constitution  as  alone  and  absolutely 
controlling),  there  was  created  a  nation,  to  be  known  as  the  United  States 
of  America,  and  as  such  then  assumed  its  place  among  the  nations  of 
the  world. 

The  first  resolution  passed  by  the  convention  that  framed  the  Constitu- 
tion, sitting  as  a  committee  of  the  whole,  was,  "Resolved,  that  it  is  the 
opinion  of  this  committee  that  a  national  government  ought  to  be  estab- 
lished, consisting  of  a  supreme  legislative,  judiciary,  and  executive." 
i  Eliot,  Debates,  p.  151. 

In  M'Cuttoch  v.  Maryland,  4  Wheaton,  316,  405,  Chief  Justice  Mar- 
shall said: 

"The  government  of  the  Union,  then  (whatever  may  be  the  influence 
of  this  fact  on  the  case),  is,  emphatically  and  truly,  a  government  of  the 
people.  In  form  and  in  substance  it  emanates  from  them.  Its  powers 


THE   COURTS  719 

are  granted  by  them,  and  are  to  be  exercised  directly  on  them,  and  for 
their  benefit." 

See  also  Martin  v.  Hunter,  i  Wheat.  304,  324,  opinion  by  Mr.  Justice 
Story. 

In  Scott  v.  Sandford,  19  How.  393,  441,  Chief  Justice  Taney  observed: 

"The  new  government  was  not  a  mere  change  in  a  dynasty,  or  in  a 
form  of  government,  leaving  the  nation  or  sovereignty  the  same,  and 
clothed  with  all  the  rights,  and  bound  by  all  the  obligations,  of  the  pre- 
ceding one.  But,  when  the  present  United  States  came  into  existence 
under  the  new  government,  it  was  a  new  political  body,  a  new  nation 
then  for  the  first  time  taking  its  place  in  the  family  of  nations." 

And  in  Miller  on  the  Constitution  of  the  United  States,  p.  83,  referring 
to  the  adoption  of  the  Constitution,  that  learned  jurist  said:  "It  was 
then  that  a  nation  was  born." 

In  the  Constitution  are  provisions  in  separate  articles  for  the  three 
great  departments  of  government,  —  legislative,  executive,  and  judicial. 
But  there  is  this  significant  difference  in  the  grants  of  powers  to  these 
departments:  The  first  article  treating  of  legislative  powers  does  not 
make  a  general  grant  of  legislative  power.  It  reads:  " Article  i,  sec- 
tion i.  All  legislative  powers  herein  granted  shall  be  vested  in  a  Con- 
gress," etc. ;  and  then  in  article  8,  mentions  and  defines  the  legislative 
powers  that  are  granted.  By  reason  of  the  fact  that  there  is  no  general 
grant  of  legislative  power  it  has  become  an  accepted  constitutional  rule 
that  this  is  a  government  of  enumerated  powers. 

In  M'Cuiloch  v.  Maryland,  4  Wheat.  405,  Chief  Justice  Marshall 
said: 

'  *  This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  The  principle  that  it  can  exercise  only  the  powers  granted  to 
it  would  seem  too  apparent  to  have  required  to  be  enforced  by  all  those 
arguments  which  its  enlightened  friends,  while  it  was  depending  before 
the  people,  found  it  necessary  to  urge.  That  principle  is  now  universally 
admitted." 

On  the  other  hand,  in  article  3,  which  treats  of  the  judicial  depart- 
ment, —  and  this  is  important  for  our  present  consideration,  —  we  find 
that  section  i  reads  that  "the  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  Congress 
may  from  time  to  time  ordain  and  establish."  By  this  is  granted  the 
entire  judicial  power  of  the  nation.  Section  2  which  provides  that 
"the  judicial  power  shall  extend  to  all  cases,  in  law  and  equity,  arising 
under  this  Constitution,  the  laws  of  the  United  States,"  etc.  is  not  a 
limitation  or  an  enumeration.  It  is  a  definite  declaration,  —  a  pro- 
vision that  the  judicial  power  shall  extend  to — that  is,  shall  include,  —  the 
several  matters  particularly  mentioned,  leaving  unrestricted  the  general 
grant  of  the  entire  judicial  power.  There  may  be,  of  course,  limi- 
tations on  that  grant  of  power,  but,  if  there  are  any,  they  must  be  ex- 


720  AMERICAN   FEDERAL   GOVERNMENT 

pressed ;  for  otherwise  the  general  grant  would  vest  in  the  courts  all  the 
judicial  power  which  the  new  nation  was  capable  of  exercising.  Con- 
struing this  article  in  the  early  case  of  Chisolm  v.  Georgia,  2  Dall.  419, 
the  court  held  that  the  judicial  power  of  the  Supreme  Court  extended 
to  a  suit  brought  against  a  state  by  a  citizen  of  another  state.  In  an- 
nouncing his  opinion  in  the  case,  Mr.  Justice  Wilson  said  (p.  453) : 

"This  question,  important  in  itself,  will  depend  on  others  more 
important  still;  and  may,  perhaps,  be  ultimately  resolved  into  one  no 
less  radical  than  this,  —  do  the  people  of  the  United  States  form  a 
nation  ?  " 

In  reference  to  this  question  attention  may,  however,  properly  be 
called  to  Hans  v.  Louisiana,  124  U.  S.  i. 

The  decision  in  Chisolm  v.  Georgia  led  to  the  adoption  of  the  nth 
Amendment  to  the  Constitution,  withdrawing  from  the  judicial  power 
of  the  United  States  every  suit  in  law  or  equity  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state  or  citizens  or 
subjects  of  a  foreign  state.  This  amendment  refers  only  to  suits  and 
actions  by  individuals,  leaving  undisturbed  the  jurisdiction  over  suits 
or  actions  by  one  state  against  another.  As  said  by  Chief  Justice  Mar- 
shall in  Cohen  v.  Virginia,  6  Wheat.  264,  407;  "The  Amendment, 
therefore,  extended  to  suits  commenced  or  prosecuted  by  individuals, 
but  not  to  those  brought  by  states."  See  also  South  Dakota  v.  North 
Carolina,  192  U.  S.  286. 

Speaking  generally,  it  may  be  observed  that  the  judicial  power  of  a 
nation  extends  to  all  controversies  justiciable  in  their  nature,  and  the 
parties  to  which  or  the  property  involved  in  which  may  be  reached  by 
judicial  process,  and,  when  the  judicial  power  of  the  United  States  was 
vested  in  the  Supreme  and  other  courts,  all  the  judicial  power  which  the 
nation  was  capable  of  exercising  was  vested  in  those  tribunals;  and 
unless  there  be  some  limitations  expressed  in  the  Constitution  it  must 
be  held  to  embrace  all  controversies  of  a  justiciable  nature  arising  within 
the  territorial  limits  of  the  nation,  no  matter  who  may  be  the  parties 
thereto.  This  general  truth  is  not  inconsistent  with  the  decisions  that 
no  suit  or  action  can  be  maintained  against  the  nation  in  any  of  its  courts 
without  its  consent,  for  they  only  recognize  the  obvious  truth  that  a 
nation  is  not,  without  its  consent,  subject  to  the  controlling  action  of 
any  of  its  instrumentalities  or  agencies.  The  creature  can  not  rule  the 
creator.  Kawananakoa  v.  Polyblank,  205  U.  S.  349.  Nor  is  it  incon- 
sistent with  the  ruling  in  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265, 
that  an  original  action  can  not  be  maintained  in  this  court  by  one  state  to 
enforce  its  penal  laws  against  a  citizen  of  another  state.  That  was  no 
denial  of  the  jurisdiction  of  the  court,  but  a  decision  upon  the  merits 
of  the  claim  of  the  state. 

These  considerations  lead  to  the  propositions  that  when  a  legislative 
power  is  claimed  for  the  national  government  the  question  is  whether 


THE   COURTS  721 

that  power  is  one  of  those  granted  by  the  Constitution,  either  in  terms 
or  by  necessary  implication;  whereas,  in  respect  to  judicial  functions, 
the  question  is  whether  there  be  any  limitations  expressed  in  the  Con- 
stitution on  the  general  grant  of  national  power. 

We  may  also  notice  a  matter  in  respect  thereto  referred  to  at  length 
in  Missouri  v.  Illinois,  180  U.  S.  208,  220.  The  gth  article  of  the  Articles 
of  Confederation  provided  that  "the  United  States  in  Congress  assembled 
shall  also  be  the  last  resort  on  appeal  in  all  disputes  and  differences  now 
subsisting  or  that  may  hereafter  arise  between  two  or  more  states  con- 
cerning boundary,  jurisdiction,  or  any  other  cause  whatever."  In  the 
early  drafts  of  the  Constitution  provision  was  made  giving  to  the  Supreme 
Court  "jurisdiction  of  controversies  between  two  or  more  states,  except 
such  as  shall  regard  territory  or  jurisdiction,  "and  also  that  the  Senate 
should  have  exclusive  power  to  regulate  the  manner  of  deciding  the  dis- 
putes and  controversies  between  the  states  respecting  jurisdiction  or 
territory.  As  finally  adopted,  the  Constitution  omits  all  provision  for 
the  Senate  taking  cognizance  of  disputes  between  the  states,  and  leaves 
out  the  exception  referred  to  in  the  jurisdiction  granted  to  the  Supreme 
Court.  That  carries  with  it  a  very  direct  recognition  of  the  fact  that  to 
the  Supreme  Court  is  granted  jurisdiction  of  all  controversies  between 
the  states  which  are  justiciable  in  their  nature.  "All  the  states  have 
transferred  the  decision  of  their  controversies  to  this  court ;  each  had  a 
right  to  demand  of  it  the  exercise  of  the  power  which  they  had  made 
judicial  by  the  Confederation  of  1781  and  1788;  that  we  should  do  that 
which  neither  states  nor  Congress  could  do  —  settle  the  controversies 
between  them."  Rhode  Island  v.  Massachusetts,  12  Pet.  657,  743. 


THE  RIGHT   OF  THE   GOVERNMENT  TO  APPEAL  IN 
CRIMINAL  CASES  —  INJUNCTIONS 

FROM  PRESIDENT  ROOSEVELT'S  MESSAGE  OF  DECEMBER,  1906 

To  THE  SENATE  AND  HOUSE  OF  REPRESENTATIVES: 

Appeal  in  Criminal  Cases.  Another  bill  which  has  just  passed  one 
House  of  the  Congress  and  which  it  is  urgently  necessary  should  be 
enacted  into  law  is  that  conferring  upon  the  Government  the  right  of 
appeal  in  criminal  cases  on  questions  of  law.  This  right  exists  in  many 
of  the  States ;  it  exists  in  the  District  of  Columbia  by  act  of  the  Congress. 
It  is  of  course  not  proposed  that  in  any  case  a  verdict  for  the  defendant  on 
the  merits  should  be  set  aside.  Recently  in  one  district  where  the  Gov- 
ernment had  indicted  certain  persons  for  conspiracy  in  connection  with 
rebates,  the  court  sustained  the  defendant's  demurrer ;  while  in  another 
jurisdiction  an  indictment  for  conspiracy  to  obtain  rebates  has  been 
sustained  by  the  court,  convictions  obtained  under  it,  and  two  defend- 

46 


722  AMERICAN   FEDERAL   GOVERNMENT 

ants  sentenced  to  imprisonment.  The  two  cases  referred  to  may  not 
be  in  real  conflict  with  each  other,  but  it  is  unfortunate  that  there  should 
even  be  an  apparent  conflict.  At  present  there  is  no  way  by  which  the 
Government  can  cause  such  a  conflict,  when  it  occurs,  to  be  solved  by 
an  appeal  to  a  higher  court ;  and  the  wheels  of  justice  are  blocked  with- 
out any  real  decision  of  the  question.  I  can  not  too  strongly  urge  the 
passage  of  the  bill  in  question.  A  failure  to  pass  it  will  result  in  seriously 
hampering  the  Government  in  its  effort  to  obtain  justice,  especially 
against  wealthy  individuals  or  corporations  who  do  wrong;  and  may 
also  prevent  the  Government  from  obtaining  justice  for  wageworkers 
who  are  not  themselves  able  effectively  to  contest  a  case  where  the  judg- 
ment of  an  inferior  court  has  been  against  them.  I  have  specifically 
in  view  a  recent  decision  by  a  district  judge  leaving  railway  employees 
without  remedy  for  violation  of  a  certain  so-called  labor  statute.  It 
seems  an  absurdity  to  permit  a  single  district  judge,  against  what  may 
be  the  judgment  of  the  immense  majority  of  his  colleagues  on  the  bench, 
to  declare  a  law  solemnly  enacted  by  the  Congress  to  be  "  unconstitu- 
tional," and  then  to  deny  to  the  Government  the  right  to  have  the  Su- 
preme Court  definitely  decide  the  question. 

It  is  well  to  recollect  that  the  real  efficiency  of  the  law  often  depends 
not  upon  the  passage  of  acts  as  to  which  there  is  great  public  excite- 
ment, but  upon  the  passage  of  acts  of  this  nature  as  to  which  there  is 
not  much  public  excitement,  because  there  is  little  public  understand- 
ing of  their  importance,  while  the  interested  parties  are  keenly  alive  to 
the  desirability  of  defeating  them.  The  importance  of  enacting  into  law 
the  particular  bill  in  question  is  further  increased  by  the  fact  that  the 
Government  has  now  definitely  begun  a  policy  of  resorting  to  the  crim- 
inal law  in  those  trust  and  interstate  commerce  cases  where  such  a  course 
offers  a  reasonable  chance  of  success.  At  first,  as  was  proper,  every 
effort  was  made  to  enforce  these  laws  by  civil  proceedings;  but  it  has 
become  increasingly  evident  that  the  action  of  the  Government  in  finally 
deciding,  in  certain  cases,  to  undertake  criminal  proceedings  was  justifi- 
able; and  though  there  have  been  some  conspicuous  failures  in  these 
cases,  we  have  had  many  successes,  which  have  undoubtedly  had  a 
deterrent  effect  upon  evil-doers,  whether  the  penalty  inflicted  was  in  the 
shape  of  fine  or  imprisonment  —  and  penalties  of  both  kinds  have  already 
been  inflicted  by  the  courts.  Of  course,  where  the  judge  can  see  his  way 
to  inflict  the  penalty  of  imprisonment  the  deterrent  effect  of  the  punish- 
ment on  other  offenders  is  increased;  but  sufficiently  heavy  fines  ac- 
complish much.  Judge  Holt,  of  the  New  York  district  court,  in  a  recent 
decision  admirably  stated  the  need  for  treating  with  just  severity  offend- 
ers of  this  kind.  His  opinion  runs  in  part  as  follows : 

"The  Government's  evidence  to  establish  the  defendant's  guilt  was 
clear,  conclusive,  and  undisputed.  The  case  was  a  flagrant  one.  The 
transactions  which  took  place  under  this  illegal  contract  were  very 


THE   COURTS  723 

large;  the  amount  of  rebates  returned  were  considerable;  and  the 
amount  of  the  rebate  itself  was  large,  amounting  to  more  than  one-fifth 
of  the  entire  tariff  charge  for  the  transportation  of  merchandise  from 
this  city  to  Detroit.  It  is  not  too  much  to  say,  in  my  opinion,  that  if 
this  business  was  carried  on  for  a  considerable  time  on  that  basis  —  that 
is,  if  this  discrimination  in  favor  of  this  particular  shipper  was  made 
with  an  1 8  instead  of  a  23  cent  rate  and  the  tariff  rate  was  maintained  as 
against  their  competitors  —  the  result  might  be  and  not  improbably 
would  be  that  their  competitors  would  be  driven  out  of  business.  This 
crime  is  one  which  in  its  nature  is  deliberate  and  premeditated.  I  think 
over  a  fortnight  elapsed  between  the  date  of  Palmer's  letter  requesting 
the  reduced  rate  and  the  answer  of  the  railroad  company  deciding  to 
grant  it,  and  then  for  months  afterwards  this  business  was  carried  on 
and  these  claims  for  rebates  submitted  month  after  month  and  checks 
in  payment  of  them  drawn  month  after  month.  Such  a  violation  of  the 
law,  in  my  opinion,  in  its  essential  nature,  is  a  very  much  more  heinous 
act  than  the  ordinary  common,  vulgar  crimes  which  come  before  criminal 
courts  constantly  for  punishment  and  which  arise  from  sudden  passion 
or  temptation.  This  crime  in  this  case  was  committed  by  men  of  educa- 
tion and  of  large  business  experience,  whose  standing  in  the  community 
was  such  that  they  might  have  been  expected  to  set  an  example  of  obedi- 
ence to  law,  upon  the  maintenance  of  which  alone  in  this  country  the 
security  of  their  property  depends.  It  was  committed  on  behalf  of  a 
great  railroad  corporation,  which,  like  other  railroad  corporations,  has 
received  gratuitously  from  the  State  large  and  valuable  privileges  for 
the  public's  convenience  and  its  own,  which  performs  quasi  public 
functions  and  which  is  charged  with  the  highest  obligation  in  the  trans- 
action of  its  business  to  treat  the  citizens  of  this  country  alike,  and  not 
to  carry  on  its  business  with  unjust  discriminations  between  different 
citizens  or  different  classes  of  citizens.  This  crime  in  its  nature  is  one 
usually  done  with  secrecy,  and  proof  of  which  it  is  very  difficult  to  obtain. 
The  interstate  commerce  act  was  passed  in  1887,  nearly  twenty  years  ago. 
Ever  since  that  time  complaints  of  the  granting  of  rebates  by  railroads 
has  been  common,  urgent,  and  insistent,  and  although  the  Congress  has 
repeatedly  passed  legislation  endeavoring  to  put  a  stop  to  this  evil,  the 
difficulty  of  obtaining  proof  upon  which  to  bring  prosecution  in  these 
cases  is  so  great  that  this  is  the  first  case  that  has  ever  been  brought 
in  this  court,  and,  as  I  am  informed,  this  case  and  one  recently  brought 
in  Philadelphia  are  the  only  cases  that  have  ever  been  brought  in  the 
eastern  part  of  this  country.  In  fact,  but  few  cases  of  this  kind  have 
ever  been  brought  in  this  country,  East  or  West.  Now,  under  these 
circumstances,  I  am  forced  to  the  conclusion,  in  a  case  in  which  the  proof 
is  so  clear  and  the  facts  are  so  flagrant,  it  is  the  duty  of  the  court  to  fix 
a  penalty  which  shall  in  some  degree  be  commensurate  with  the  gravity 
of  the  offense.  As  between  the  two  defendants,  in  my  opinion,  the 


724  AMERICAN  FEDERAL   GOVERNMENT 

principal  penalty  should  be  imposed  on  the  corporation.  The  traffic 
manager  in  this  case,  presumably,  acted  without  any  advantage  to  him- 
self and  without  any  interest  in  the  transaction,  either  by  the  direct 
authority  or  in  accordance  with  what  he  understood  to  be  the  policy  or 
the  wishes  of  his  employer. 

"  The  sentence  of  this  court  in  this  case  is,  that  the  defendant  Pom- 
eroy,  for  each  of  the  six  offenses  upon  which  he  has  been  convicted,  be 
fined  the  sum  of  $1,000,  making  six  fines,  amounting  in  all  to  the  sum  of 
$6,000;  and  the  defendant,  The  New  York  Central  and  Hudson  River 
Railroad  Company,  for  each  of  the  six  crimes  of  which  it  has  been  con- 
victed, be  fined  the  sum  of  $18,000,  making  six  fines  amounting  in  the 
aggregate  to  the  sum  of  $108,000,  and  judgment  to  that  effect  will  be 
entered  in  this  case." 

Granting  of  New  Trials.  In  connection  with  this  matter,  I  would  like 
to  call  attention  to  the  very  unsatisfactory  state  of  our  criminal  law, 
resulting  in  large  part  from  the  habit  of  setting  aside  the  judgments  of 
inferior  courts  on  technicalities  absolutely  unconnected  with  the  merits 
of  the  case,  and  where  there  is  no  attempt  to  show  that  there  has  been 
any  failure  of  substantial  justice.  It  would  be  well  to  enact  a  law  pro- 
viding something  to  the  effect  that: 

No  judgment  shall  be  set  aside  or  new  trial  granted  in  any  cause, 
civil  or  criminal,  on  the  ground  of  misdirection  of  the  jury  or  the  im- 
proper admission  or  rejection  of  evidence,  or  for  error  as  to  any  matter 
of  pleading  or  procedure  unless,  in  the  opinion  of  the  court  to  which  the 
application  is  made,  after  an  examination  of  the  entire  cause,  it  shall 
affirmatively  appear  that  the  error  complained  of  has  resulted  in  a  mis- 
carriage of  justice. 

Injunctions.  In  my  last  message  I  suggested  the  enactment  of  a  law 
in  connection  with  the  issuance  of  injunctions,  attention  having  been 
sharply  drawn  to  the  matter  by  the  demand  that  the  right  of  applying 
injunctions  in  labor  cases  should  be  wholly  abolished.  It  is  at  least 
doubtful  whether  a  law  abolishing  altogether  the  use  of  injunctions  in 
such  cases  would  stand  the  test  of  the  courts;  in  which  case  of  course 
the  legislation  would  be  ineffective.  Moreover,  I  believe  it  would  be 
wrong  altogether  to  prohibit  the  use  of  injunctions.  It  is  criminal  to 
permit  sympathy  for  criminals  to  weaken  our  hands  in  upholding  the 
law ;  and  if  men  seek  to  destroy  life  or  property  by  mob  violence  there 
should  be  no  impairment  of  the  power  of  the  courts  to  deal  with  them 
in  the  most  summary  and  effective  way  possible.  But  so  far  as  possible 
the  abuse  of  the  power  should  be  provided  against  by  some  such  law  as 
I  advocated  last  year. 

In  this  matter  of  injunctions  there  is  lodged  in  the  hands  of  the  judi- 
ciary a  necessary  power  which  is  nevertheless  subject  to  the  possibility 
of  grave  abuse.  It  is  a  power  that  should  be  exercised  with  extreme 
care  and  should  be  subject  to  the  jealous  scrutiny  of  all  men,  and  con- 


THE   COURTS  725 

demnation  should  be  meted  out  as  much  to  the  judge  who  fails  to  use 
it  boldly  when  necessary  as  to  the  judge  who  uses  it  wantonly  or  oppres- 
sively. Of  course  a  judge  strong  enough  to  be  fit  for  his  office  will  enjoin 
any  resort  to  violence  or  intimidation,  especially  by  conspiracy,  no  matter 
what  his  opinion  may  be  of  the  rights  of  the  original  quarrel.  There 
must  be  no  hesitation  in  dealing  with  disorder.  But  there  must  likewise 
be  no  such  abuse  of  the  injunctive  power  as  is  implied  in  forbidding 
laboring  men  to  strive  for  their  own  betterment  in  peaceful  and  lawful 
ways;  nor  must  the  injunction  be  used  merely  to  aid  some  big  corpora- 
tion in  carrying  out  schemes  for  its  own  aggrandizement.  It  must  be 
remembered  that  a  preliminary  injunction  in  a  labor  case,  if  granted 
without  adequate  proof  (even  when  authority  can  be  found  to  support 
the  conclusions  of  law  on  which  it  is  founded),  may  often  settle  the  dis- 
pute between  the  parties;  and  therefore  if  improperly  granted  may  do 
irreparable  wrong.  Yet  there  are  many  judges  who  assume  a  matter- 
of-course  granting  of  a  preliminary  injunction  to  be  the  ordinary  and 
proper  judicial  disposition  of  such  cases;  and  there  have  undoubtedly 
been  flagrant  wrongs  committed  by  judges  in  connection  with  labor 
disputes  even  within  the  last  few  years,  although  I  think  much  less  often 
than  in  former  years.  Such  judges  by  their  unwise  action  immensely 
strengthen  the  hands  of  those  who  are  striving  entirely  to  do  away  with 
the  power  of  injunction ;  and  therefore  such  careless  use  of  the  injunc- 
tive process  tends  to  threaten  its  very  existence,  for  if  the  American 
people  ever  become  convinced  that  this  process  is  habitually  abused, 
whether  in  matters  affecting  labor  or  in  matters  affecting  corporations, 
it  will  be  well-nigh  impossible  to  prevent  its  abolition. 

It  may  be  the  highest  duty  of  a  judge  at  any  given  moment  to  dis- 
regard, not  merely  the  wishes  of  individuals  of  great  political  or  financial 
power,  but  the  overwhelming  tide  of  public  sentiment;  and  the  judge 
who  does  thus  disregard  public  sentiment  when  it  is  wrong,  who  brushes 
aside  the  plea  of  any  special  interest  when  the  pleading  is  not  founded 
on  righteousness,  performs  the  highest  service  to  the  country.  Such  a 
judge  is  deserving  of  all  honor;  and  all  honor  can  not  be  paid  to  this 
wise  and  fearless  judge  if  we  permit  the  growth  of  an  absurd  conven- 
tion which  would  forbid  any  criticism  of  the  judge  of  another  type,  who 
shows  himself  timid  in  the  presence  of  arrogant  disorder,  or  who  on  in- 
sufficient grounds  grants  an  injunction  that  does  grave  injustice,  or  who, 
in  his  capacity  as  a  construer,  and  therefore  in  part  a  maker,  of  the 
law,  in  flagrant  fashion  thwarts  the  cause  of  decent  government.  The 
judge  has  a  power  over  which  no  review  can  be  exercised;  he  himself 
sits  in  review  upon  the  acts  of  both  the  executive  and  legislative 
branches  of  the  Government;  save  in  the  most  extraordinary  cases  he 
is  amenable  only  at  the  bar  of  public  opinion;  and  it  is  unwise  to 
maintain  that  public  opinion  in  reference  to  a  man  with  such  power 
shall  neither  be  expressed  nor  led. 


726  AMERICAN   FEDERAL   GOVERNMENT 

The  best  judges  have  ever  been  foremost  to  disclaim  any  immunity 
from  criticism.  This  has  been  true  since  the  days  of  the  great  English 
Lord  Chancellor  Parker,  who  said:  "Let  all  people  be  at  liberty  to 
know  what  I  found  my  judgment  upon ;  that,  so  when  I  have  given  it 
in  any  cause,  others  may  be  at  liberty  to  judge  of  me."  The  proprieties 
of  the  case  were  set  forth  with  singular  clearness  and  good  temper  by 
Judge  W.  H.  Taft,  when  a  United  States  circuit  judge,  eleven  years  ago, 
in  1895: 

"The  opportunity  freely  and  publicly  to  criticize  judicial  action  is  of 
vastly  more  importance  to  the  body  politic  than  the  immunity  of  courts 
and  judges  from  unjust  aspersions  and  attack.  Nothing  tends  more  to 
render  judges  careful  in  their  decisions  and  anxiously  solicitous  to  do 
exact  justice  than  the  consciousness  that  every  act  of  theirs  is  to  be  sub- 
jected to  the  intelligent  scrutiny  and  candid  criticism  of  their  fellow-men. 
Such  criticism  is  beneficial  in  proportion  as  it  is  fair,  dispassionate,  dis- 
criminating, and  based  on  a  knowledge  of  sound  legal  principles.  The 
comments  made  by  learned  text  writers  and  by  the  acute  editors  of  the 
various  law  reviews  upon  judicial  decisions  are  therefore  highly  useful. 
Such  critics  constitute  more  or  less  impartial  tribunals  of  professional  opin- 
ion before  which  each  judgment  is  made  to  stand  or  fall  on  its  merits, 
and  thus  exert  a  strong  influence  to  secure  uniformity  of  decision.  But 
non-professional  criticism  also  is  by  no  means  without  its  uses,  even  if 
accompanied,  as  it  often  is,  by  a  direct  attack  upon  the  judicial  fairness 
and  motives  of  the  occupants  of  the  bench ;  for  if  the  law  is  but  the  es- 
sence of  common  sense,  the  protest  of  many  average  men  may  evidence 
a  defect  in  a  judicial  conclusion,  though  based  on  the  nicest  legal  reason- 
ing and  profoundest  learning.  The  two  important  elements  of  moral 
character  in  a  judge  are  an  earnest  desire  to  reach  a  just  conclusion  and 
courage  to  enforce  it.  In  so  far  as  fear  of  public  comment  does  not 
affect  the  courage  of  a  judge,  but  only  spurs  him  on  to  search  his  con- 
science and  to  reach  the  result  which  approves  itself  to  his  inmost  heart, 
such  comment  serves  a  useful  purpose.  There  are  few  men,  whether 
they  are  judges  for  life  or  for  a  shorter  term,  who  do  not  prefer  to  earn 
and  hold  'the  respect  of  all,  and  who  can  not  be  reached  and  made  to 
pause  and  deliberate  by  hostile  public  criticism.  In  the  case  of  judges 
having  a  life  tenure,  indeed,  their  very  independence  makes  the  right 
freely  to  comment  on  their  decisions  of  greater  importance,  because  it 
is  the  only  practical  and  available  instrument  in  the  hands  of  a  free 
people  to  keep  such  judges  alive  to  the  reasonable  demands  of  those 
they  serve. 

"On  the  other  hand,  the  danger  of  destroying  the  proper  influence  of 
judicial  decisions  by  creating  unfounded  prejudices  against  the  courts 
justifies  and  requires  that  unjust  attacks  shall  be  met  and  answered. 
Courts  must  ultimately  rest  their  defense  upon  the  inherent  strength 
of  the  opinions  they  deliver  as  the  ground  for  their  conclusions  and 


THE   COURTS  727 

must  trust  to  the  calm  and  deliberate  judgment  of  all  the  people  as  their 
best  vindication." 

There  is  one  consideration  which  should  be  taken  into  account  by 
the  good  people  who  carry  a  sound  proposition  to  an  excess  in  object- 
ing to  any  criticism  of  a  judge's  decision.  The  instinct  of  the  American 
people  as  a  whole  is  sound  in  this  matter.  They  will  not  subscribe  to 
the  doctrine  that  any  public  servant  is  to  be  above  all  criticism.  If  the 
best  citizens,  those  mose  competent  to  express  their  judgment  in  such 
matters,  and  above  all  those  belonging  to  the  great  and  honorable  pro- 
fession of  the  bar,  so  profoundly  influential  in  American  life,  take  the 
position  that  there  shall  be  no  criticism  of  a  judge  under  any  circum- 
stances, their  view  will  not  be  accepted  by  the  American  people  as  a 
whole.  In  such  event  the  people  will  turn  to,  and  tend  to  accept  as 
justifiable,  the  intemperate  and  improper  criticism  uttered  by  unworthy 
agitators.  Surely  it  is  a  misfortune  to  leave  to  such  critics  a  function, 
right  in  itself,  which  they  are  certain  to  abuse.  Just  and  temperate 
criticism,  when  necessary,  is  a  safeguard  against  the  acceptance  by  the 
people  as  a  whole  of  that  intemperate  antagonism  towards  the  judiciary 
which  must  be  combated  by  every  right-thinking  man,  and  which,  if  it 
became  widespread  among  the  people  at  large,  would  constitute  a  dire 
menace  to  the  Republic. 

Lynching.  In  connection  with  the  delays  of  the  law,  I  call  your  atten- 
tion and  the  attention  of  the  Nation  to  the  prevalence  of  crime  among 
us,  and  above  all  to  the  epidemic  of  lynching  and  mob  violence  that 
springs  up,  now  in  one  part  of  our  country,  now  in  another.  Each  section, 
North,  South,  East,  or  West,  has  its  own  faults;  no  section  can  with 
wisdom  spend  its  time  jeering  at  the  faults  of  another  section ;  it  should 
be  busy  trying  to  amend  its  own  shortcomings.  To  deal  with  the  crime 
of  corruption  it  is  necessary  to  have  an  awakened  public  conscience, 
and  to  supplement  this  by  whatever  legislation  will  add  speed  and  cer- 
tainty in  the  execution  of  the  law.  When  we  deal  with  lynching  even 
more  is  necessary.  A  great  many  white  men  are  lynched,  but  the  crime 
is  peculiarly  frequent  in  respect  to  black  men.  The  greatest  existing 
cause  of  lynching  is  the  perpetration,  especially  by  black  men,  of  the 
hideous  crime  of  rape  —  the  most  abominable  in  all  the  category  of 
crimes,  even  worse  than  murder.  Mobs  frequently  avenge  the  commis- 
sion of  this  crime  by  themselves  torturing  to  death  the  man  committing 
it;  thus  avenging  in  bestial  fashion  a  bestial  deed,  and  reducing  them- 
selves to  a  level  with  the  criminal. 

Lawlessness  grows  by  what  it  feeds  upon;  and  when  mobs  begin  to 
lynch  for  rape  they  speedily  extend  the  sphere  of  their  operations  and 
lynch  for  many  other  kinds  of  crimes,  so  that  two-thirds  of  the  lynch- 
ings  are  not  for  rape  at  all ;  while  a  considerable  proportion  of  the  indi- 
viduals lynched  are  innocent  of  all  crime.  Governor  Candler,  of  Georgia, 
stated  on  one  occasion  some  years  ago:  "I  can  say  of  a  verity  that  I 


728  AMERICAN   FEDERAL   GOVERNMENT 

have,  within  the  last  month,  saved  the  lives  of  half  a  dozen  innocent 
negroes  who  were  pursued  by  the  mob,  and  brought  them  to  trial  in  a 
court  of  a  law  in  which  they  were  acquitted."  As  Bishop  Galloway, 
of  Mississippi,  has  finely  said:  "When  the  rule  of  a  mob  obtains,  that 
which  distinguishes  a  high  civilization  is  surrendered.  The  mob  which 
lynches  a  negro  charged  with  rape  will  in  a  little  while  lynch  a  white 
man  suspected  of  crime.  Every  Christian  patriot  in  America  needs  to 
lift  up  his  voice  in  loud  and  eternal  protest  against  the  mob  spirit  that 
is  threatening  the  integrity  of  this  Republic."  Governor  Jelks,  of  Ala- 
bama, has  recently  spoken  as  follows:  "The  lynching  of  any  person  for 
whatever  crime  is  inexcusable  anywhere  —  it  is  a  defiance  of  orderly 
government;  but  the  killing  of  innocent  people  under  any  provocation 
is  infinitely  more  horrible;  and  yet  innocent  people  are  likely  to  die 
when  a  mob's  terrible  lust  is  once  aroused.  The  lesson  is  this:  No 
good  citizen  can  afford  to  countenance  a  defiance  of  the  statutes,  no 
matter  what  the  provocation.  The  innocent  frequently  suffer,  and,  it 
is  my  observation,  more  usually  suffer  than  the  guilty.  The  white  people 
of  the  South  indict  the  whole  colored  race  on  the  ground  that  even  the 
better  elements  lend  no  assistance  whatever  in  ferreting  out  criminals 
of  their  own  color.  The  respectable  colored  people  must  learn  not  to 
harbor  their  criminals,  but  to  assist  the  officers  in  bringing  them  to  jus- 
tice. This  is  the  larger  crime,  and  it  provokes  such  atrocious  offenses 
as  the  one  at  Atlanta.  The  two  races  can  never  get  on  until  there  is  an 
understanding  on  the  part  of  both  to  make  common  cause  with  the  law- 
abiding  against  criminals  of  any  color." 

Moreover,  where  any  crime  committed  by  a  member  of  one  race 
against  a  member  of  another  race  is  avenged  in  such  fashion  that  it 
seems  as  if  not  the  individual  criminal,  but  the  whole  race,  is  attacked, 
the  result  is  to  exasperate  to  the  highest  degree  race  feeling.  There  is 
but  one  safe  rule  in  dealing  with  black  men  as  with  white  men;  it  is 
the  same  rule  that  must  be  applied  in  dealing  with  rich  men  and  poor 
men;  that  is,  to  treat  each  man,  whatever  his  color,  his  creed,  or  his 
social  position,  with  even-handed  justice  on  his  real  worth  as  a  man. 
White  people  owe  it  quite  as  much  to  themselves  as  to  the  colored  race 
to  treat  well  the  colored  man  who  shows  by  his  life  that  he  deserves  such 
treatment;  for  it  is  surely  the  highest  wisdom  to  encourage  in  the  colored 
race  all  those  individuals  who  are  honest,  industrious,  law-abiding,  and 
who  therefore  make  good  and  safe  neighbors  and  citizens.  Reward  or 
punish  the  individual  on  his  merits  as  an  individual.  Evil  will  surely 
come  in  the  end  to  both  races  if  we  substitute  for  this  just  rule  the  habit 
of  treating  all  the  members  of  the  race,  good  and  bad,  alike.  There  is  no 
question  of  "social  equality"  or  "negro  domination"  involved;  only  the 
question  of  relentlessly  punishing  bad  men,  and  of  securing  to  the  good 
man  the  right  to  his  life,  his  liberty,  and  the  pursuit  of  his  happiness 
as  his  own  qualities  of  heart,  head,  and  hand  enable  him  to  achieve  it. 


THE   COURTS  729 

Every  colored  man  should  realize  that  the  worst  enemy  of  his  race  is 
the  negro  criminal,  and  above  all  the  negro  criminal  who  commits  the 
dreadful  crime  of  rape;  and  it  should  be  felt  as  in  the  highest  degree 
an  offense  against  the  whole  country,  and  against  the  colored  race  in 
particular,  for  a  colored  man  to  fail  to  help  the  officers  of  the  law  in 
hunting  down  with  all  possible  earnestness  and  zeal  every  such  infamous 
offender.  Moreover,  in  my  judgment,  the  crime  of  rape  should  always 
be  punished  with  death,  as  is  the  case  with  murder;  assault  with  intent 
to  commit  rape  should  be  made  a  capital  crime,  at  least  in  the  discretion 
of  the  court;  and  provision  should  be  made  by  which  the  punishment 
may  follow  immediately  upon  the  heels  of  the  offense;  while  the  trial 
should  be  so  conducted  that  the  victim  need  not  be  wantonly  shamed 
while  giving  testimony,  and  that  the  least  possible  publicity  shall  be 
given  to  the  details. 

The  members  of  the  white  race  on  the  other  hand  should  understand 
that  every  lynching  represents  by  just  so  much  a  loosening  of  the  bands 
of  civilization ;  that  the  spirit  of  lynching  inevitably  throws  into  promi- 
nence in  the  community  all  the  foul  and  evil  creatures  who  dwell  therein. 
No  man  can  take  part  in  the  torture  of  a  human  being  without  having 
his  own  moral  nature  permanently  lowered.  Every  lynching  means  just 
so  much  moral  deterioration  in  all  the  children  who  have  any  knowl- 
edge of  it,  and  therefore  just  so  much  additional  trouble  for  the  next 
generation  of  Americans. 

Let  justice  be  both  sure  and  swift ;  but  let  it  be  justice  under  the  law, 
and  not  the  wild  and  crooked  savagery  of  a  mob. 

There  is  another  matter  which  has  a  direct  bearing  upon  this  matter 
of  lynching  and  of  the  brutal  crime  which  sometimes  calls  it  forth  and 
at  other  times  merely  furnishes  the  excuse  for  its  existence.  It  is  out  of 
the  question  for  our  people  as  a  whole  permanently  to  rise  by  treading 
down  any  of  their  own  number.  Even  those  who  themselves  for  the 
moment  profit  by  such  maltreatment  of  their  fellows  will  in  the  long  run 
also  suffer.  No  more  shortsighted  policy  can  be  imagined  than,  in  the 
fancied  interest  of  one  class,  to  prevent  the  education  of  another  class. 
The  free  public  school,  the  chance  for  each  boy  or  girl  to  get  a  good 
elementary  education,  lies  at  the  foundation  of  our  whole  political  situa- 
tion. In  every  community  the  poorest  citizens,  those  who  need  the 
schools  most,  would  be  deprived  of  them  if  they  only  received  school 
facilities  proportioned  to  the  taxes  they  paid.  This  is  as  true  of  one 
portion  of  our  country  as  of  another.  It  is  as  true  for  the  negro  as  for 
the  white  man.  The  white  man,  if  he  is  wise;  will  decline  to  allow  the 
negroes  in  a  mass  to  grow  to  manhood  and  womanhood  without  educa- 
tion. Unquestionably  education  such  as  is  obtained  in  our  public  schools 
does  not  do  everything  towards  making  a  man  a  good  citizen;  but  it 
does  much.  The  lowest  and  most  brutal  criminals,  those  for  instance 
who  commit  the  crime  of  rape,  are  in  the  great  majority  men  who  have 


730  AMERICAN  FEDERAL   GOVERNMENT 

had  either  no  education  or  very  little ;  just  as  they  are  almost  invariably 
men  who  own  no  property;  for  the  man  who  puts  money  by  out  of  his 
earnings,  like  the  man  who  acquires  education,  is  usually  lifted  above 
mere  brutal  criminality.  Of  course  the  best  type  of  education  for  the 
colored  man,  taken  as  a  whole,  is  such  education  as  is  conferred  in  schools 
like  Hampton  and  Tuskegee ;  where  the  boys  and  girls,  the  young  men 
and  young  women,  are  trained  industrially  as  well  as  in  the  ordinary 
public  school  branches.  The  graduates  of  these  schools  turn  out  well 
in  the  great  majority  of  cases,  and  hardly  any  of  them  become  criminals, 
while  what  little  criminality  there  is  never  takes  the  form  of  that  brutal 
violence  which  invites  lynch  law.  Every  graduate  of  these  schools  — 
and  for  the  matter  of  that  every  other  colored  man  or  woman  —  who 
leads  a  life  so  useful  and  honorable  as  to  win  the  good  will  and  respect 
of  those  whites  whose  neighbor  he  or  she  is,  thereby  helps  the  whole 
colored  race  as  it  can  be  helped  in  no  other  way ;  for  next  to  the  negro 
himself,  the  man  who  can  do  most  to  help  the  negro  is  his  white  neighbor 
who  lives  near  him;  and  our  steady  effort  should  be  to  better  the  rela- 
tions between  the  two.  Great  though  the  benefit  of  these  schools  has 
been  to  their  colored  pupils  and  to  the  colored  people,  it  may  well  be  ques- 
tioned whether  the  benefit  has  not  been  at  least  as  great  to  the  white 
people  among  whom  these  colored  pupils  live  after  they  graduate. 

Be  it  remembered,  furthermore,  that  the  individuals  who,  whether 
from  folly,  from  evil  temper,  from  greed  for  office,  or  in  a  spirit  of  mere 
base  demagogy,  indulge  in  the  inflammatory  and  incendiary  speeches 
and  writings  which  tend  to  arouse  mobs  and  to  bring  about  lynching, 
not  only  thus  excite  the  mob,  but  also  tend  by  what  criminologists  call 
"  suggestion,"  greatly  to  increase  the  likelihood  of  a  repetition  of  the 
very  crime  against  which  they  are  inveighing.  When  the  mob  is  com- 
posed of  the  people  of  one  race  and  the  man  lynched  is  of  another  race, 
the  men  who  in  their  speeches  and  writings  either  excite  or  justify 
the  action  tend,  of  course,  to  excite  a  bitter  race  feeling  and  to  cause  the 
people  of  the  opposite  race  to  lose  sight  of  the  abominable  act  of  the 
criminal  himself;  and  in  addition,  by  the  prominence  they  give  to 
the  hideous  deed  they  undoubtedly  tend  to  excite  in  other  brutal  and 
depraved  natures  thoughts  of  committing  it.  Swift,  relentless,  and  or- 
derly punishment  under  the  law  is  the  only  way  by  which  criminality  of 
this  type  can  permanently  be  suppressed. 


XV 

CENTRALIZATION   AND    CHANGES    IN   THE 
CONSTITUTION 

[The  expansion  of  the  activities  of  the  federal  government  has  aroused  much 
discussion.  Those  who  believe  in  a  strong  national  authority  welcome  the 
activity  of  the  federal  government  as  a  symptom  of  strength  in  our  national 
life.  They  see  in  it  only  the  normal  adaptation  of  instruments  of  government 
to  social  and  economic  needs  of  the  nation.  Others  who  believe  strongly  in 
local  and  state  autonomy  express  the  fear  that  the  federal  government  may 
entirely  supersede  the  states,  and  that  there  will  result  an  over-concentration 
of  political  action.  This  matter  has  already  been  brought  out  in  many  of  the 
extracts  printed  on  preceding  pages.  The  speeches  of  Senator  Newlands  and 
of  Senator  Beveridge,  on  national  resources,  express  a  strong  belief  in  the 
justification  of  federal  initiative.  The  same  ideas  are  developed  in  the  mes- 
sages of  President  Roosevelt.  The  different  points  of  view  are  very  strongly 
presented  in  the  following  debates  and  addresses.] 

HOW  TO   PRESERVE  THE   LOCAL   SELF-GOVERNMENT 
OF  THE   STATES1 

BY  ELIHU  ROOT 

THIS  gathering  peculiarly  represents  two  ancient  Commonwealths, 
each  looking  back  to  a  century  and  a  half  of  colonial  history  before  the 
formation  of  the  American  Union,  each  possessed  of  strong  individuality, 
derived  from  the  long  practice  of  self-government,  and  both  conspicu- 
ous among  all  the  States  for  leadership  in  population  and  wealth,  for 
commerce  and  manufacture,  for  art  and  science,  and  for  the  priceless 
traditions  of  great  citizens  in  former  generations.  It  seems  appropriate 
to  make  here  some  observations  upon  a  subject  which  is  much  in  the 
minds  of  thoughtful  Americans  in  these  days. 

What  is  to  be  the  future  of  the  States  of  the  Union  under  our  dual 
system  of  constitutional  government? 

The  conditions  under  which  the  clauses  of  the  Constitution  distribut- 
ing powers  to  the  National  and  State  governments  are  now  and  hence- 
forth to  be  applied,  are  widely  different  from  the  conditions  which  were 
or  could  have  been  within  the  contemplation  of  the  framers  of  the  Con- 
stitution, and  widely  different  from  those  which  obtained  during  the 

1  A  speech  delivered  by  Secretary  Root  at  the  dinner  of  the  Pennsylvania  Society  in 
New  York,  December  12,  1906. 

731 


732  AMERICAN   FEDERAL   GOVERNMENT 

early  years  of  the  Republic.  When  the  authors  of  The  Federalist  argued 
and  expounded  the  reasons  for  union  and  the  utility  of  the  provisions 
contained  in  the  Constitution,  each  separate  colony  transformed  into 
a  State  was  complete  in  itself  and  sufficient  to  itself  except  as  to  a  few 
exceedingly  simple  external  relations  of  State  to  State  and  to  foreign 
nations;  from  the  origin  of  production  to  the  final  consumption  of  the 
product,  from  the  birth  of  a  citizen  to  his  death,  the  business,  the  social, 
and  the  political  life  of  each  separate  community  began  and  ended  for 
the  most  part  within  the  limits  of  the  State  itself ;  the  long  time  required 
for  travel  and  communication  between  the  different  centers  of  popula- 
tion, the  difficulties  and  hardships  of  long  and  laborious  journeys,  the 
slowness  of  the  mails,  and  the  enormous  cost  of  transporting  goods,  kept 
the  people  of  each  State  tributary  to  their  own  separate  colonial  center 
of  trade  and  influence,  and  kept  their  activities  within  the  ample  and 
sufficient  jurisdiction  of  the  local  laws  of  their  State.  The  fear  of  the 
fathers  of  the  Republic  was  that  these  separate  and  self-sufficient  com- 
munities would  fall  apart,  that  the  Union  would  resolve  into  its  constitu- 
ent elements,  or  that,  as  it  grew  in  population  and  area,  it  would  split 
up  into  a  number  of  separate  confederacies.  Few  of  the  men  of  1787 
would  have  deemed  it  possible  that  the  Union  they  were  forming  could 
be  maintained  among  eighty-five  millions  of  people,  spread  over  the 
vast  expanse  from  the  Atlantic  to  the  Pacific  and  from  the  Lakes  to  the 
Gulf. 

Three  principal  causes  have  made  this  possible. 

One  cause  has  been  the  growth  of  a  National  sentiment,  which  was 
at  first  almost  imperceptible.  The  very  difficulties  and  hardships  to 
which  our  Nation  was  subjected  in  its  early  years,  the  injuries  to  our 
commerce,  and  the  insults  and  indignities  to  our  flag  on  the  part  of  both 
of  the  contestants  in  the  great  Napoleonic  wars,  served  to  keep  the 
Nation  and  National  interests  and  National  dignity  constantly  before 
the  minds  and  in  the  feelings  of  the  people.  As  the  tide  of  emigration 
swept  westward,  new  States  were  formed  of  citizens  who  looked  back 
to  the  older  States  as  the  homes  of  their  childhood  and  their  affection 
and  the  origin  of  their  laws  and  customs,  and  who  never  had  the  peculiar 
and  special  separate  political  life  of  the  colonies.  The  Civil  War  settled 
the  supremacy  of  the  Nation  throughout  the  territory  of  the  Union,  and 
its  sacrifices  sanctified  and  made  enduring  that  National  sentiment. 
Our  country  as  a  whole,  the  noble  and  beloved  land  of  every  citizen 
of  every  State,  has  become  the  object  of  pride  and  devotion  among  all 
our  people,  North  and  South,  within  the  limits  of  the  proud,  old  colonial 
Commonwealths,  throughout  that  vast  region  where  Burr  once  dreamed 
of  a  separate  empire  dominating  the  valley  of  the  Mississippi,  and  upon 
the  far-distant  shores  of  the  Pacific ;  and  by  the  side  of  this  strong  and 
glowing  loyalty  to  the  Nation,  sentiment  for  the  separate  States  has 
become  dim  and  faint  in  comparison. 


CENTRALIZATION  733 

The  second  great  influence  has  been  the  knitting  together  in  ties  of 
common  interest  of  the  people  forming  the  once  separate  communities 
through  the  working  of  free  trade  among  the  States.  Never  was  a  con- 
cession dictated  by  enlightened  judgment  for  the  common  benefit  more 
richly  than  that  by  which  the  States  surrendered  in  the  Federal  Constitu- 
tion the  right  to  lay  imposts  or  duties  on  imports  or  exports  without  the 
consent  of  Congress.  To  it  we  owe  the  domestic  market  for  the  prod- 
ucts of  our  farms  and  forests  and  mines  and  factories  without  a  parallel 
in  history,  and  an  internal  trade  which  already  exceeds  the  entire  foreign 
trade  of  all  the  rest  of  the  world ;  and  to  it  we  owe  in  a  high  degree  the 
constant  drawing  together  of  all  parts  of  our  vast  and  diversified  country 
in  the  bands  of  common  interest  and  in  the  improving  good  under- 
standing and  kindly  feeling  of  frequent  intercourse. 

The  third  great  cause  of  change  is  the  marvelous  development  of 
facilities  for  travel  and  communication  produced  by  the  inventions  and 
discoveries  of  the  past  century.  The  swift  trains  that  pass  over  our  two 
hundred  and  twenty  thousand  miles  of  railroad,  the  seventy  millions  of 
messages  that  flash  over  the  more  than  fourteen  hundred  thousand  miles 
of  telegraph  wires,  the  conversations  across  vast  spaces  through  our 
more  than  four  million  four  hundred  thousand  telephone  instruments, 
take  no  note  of  State  lines ;  they  have  broken  down  the  barriers  between 
the  separate  communities  and  they  have  led  to  a  reorganization  of  the 
business  and  social  life  of  the  people  of  the  United  States  along  lines 
which,  for  the  most  part,  altogether  ignore  the  boundaries  of  the  States. 
I  left  the  borders  of  Virginia  this  afternoon  and  traversed  Maryland, 
Delaware,  Pennsylvania,  and  New  Jersey  to  the  State  of  New  York, 
and,  barring  accident,  shall  breakfast  to-morrow  morning  again  on  the 
shore  of  the  Potomac.  The  time  required  for  this  journey  would  hardly 
have  sufficed  for  an  ordinary  carriage  drive  from  the  adjoining  county 
of  Westchester  a  hundred  years  ago.  Any  one  of  us  can  go  now  into  a 
•  neighboring  room  in  this  hotel  and  talk  with  a  friend  in  Boston  or 
Chicago  and  recognize  his  voice  and  transact  business  which  formerly 
would  have  required  months  to  accomplish  if  it  could  have  been  done 
at  all.  The  lines  of  trade,  of  financial  operation,  of  social  intercourse, 
of  thought  and  opinion  that  radiate  from  the  great  centers  of  life  in  our 
country  such  as  Boston  and  New  York,  and  Philadelphia  and  Baltimore, 
and  Chicago  and  St.  Louis,  and  New  Orleans  and  San  Francisco,  and 
many  another  great  city,  are  perfectly  regardless  of  State  distinctions. 
Our  whole  life  has  swung  away  from  the  old  State  centers  and  is  crystal- 
lizing about  National  centers ;  the  farmer  harvests  his  grain  and  fattens 
his  cattle,  not  as  formerly,  with  reference  to  the  wants  of  his  own  home 
community,  but  for  markets  thousands  of  miles  away ;  the  manufacturer 
operates  his  mills  and  his  factories  to  meet  the  needs  of  far-distant  con- 
sumers; the  merchant  has  his  customers  in  many  States;  all  —  the 
farmer,  the  manufacturer,  the  merchant,  the  laborer  —  look  for  the 


734  AMERICAN   FEDERAL   GOVERNMENT 

supplies  of  their  food  and  clothing,  not  to  the  resources  of  the  home 
farm,  or  village,  or  town,  but  to  the  resources  of  the  whole  Continent. 
The  people  move  in  great  throngs  to  and  fro  from  State  to  State  and 
across  States;  the  important  news  of  each  community  is  read  at  every 
breakfast  table  throughout  the  country;  the  interchange  of  thought 
and  sentiment  and  information  is  universal;  in  the  wide  range  of  daily 
life  and  activity  and  interest  the  old  lines  between  the  States  and  the  old 
barriers  which  kept  the  States  as  separate  communities  are  completely 
lost  from  sight.  The  growth  of  National  habits  in  the  daily  life  of  a 
homogeneous  people  keeps  pace  with  the  growth  of  National  sentiment. 

Such  changes  in  the  life  of  the  people  can  not  fail  to  produce  corre- 
sponding political  changes.  Some  of  those  changes  can  be  plainly  seen 
now  in  progress.  It  is  plainly  to  be  seen  that  the  people  of  the  country 
are  coming  to  the  conclusion  that  in  certain  important  respects  the  local 
laws  of  the  separate  States,  which  were  adequate  for  the  due  and  just 
regulation  and  control  of  the  business  which  was  transacted  and  the 
activity  which  began  and  ended  within  the  limits  of  the  several  States, 
are  inadequate  for  the  due  and  just  control  of  the  business  and  activities 
which  extend  throughout  all  the  States,  and  that  such  power  of  regula- 
tion and  control  is  gradually  passing  into  the  hands  of  the  National 
Government.  Sometimes  by  an  assertion  of  the  interstate  commerce 
power,  sometimes  by  an  assertion  of  the  taxing  power,  the  National 
Government  is  taking  up  the  performance  of  duties  which  under  the 
changed  conditions  the  separate  States  are  no  longer  capable  of  ade- 
quately performing.  The  Federal  anti-trust  law,  the  anti-rebate  law, 
the  railroad  rate  law,  the  meat-inspection  law,  the  oleomargarine  law, 
the  pure-food  law,  are  examples  of  the  purpose  of  the  people  of  the 
United  States  to  do  through  the  agency  of  the  National  Government 
the  things  which  the  separate  State  governments  formerly  did  adequately 
but  no  longer  do  adequately.  The  end  is  not  yet.  The  process  that 
interweaves  the  life  and  action  of  the  people  in  every  section  of  our- 
country  with  the  people  in  every  other  section,  continues  and  will  con- 
tinue with  increasing  force  and  effect;  we  are  urging  forward  in  a  de- 
velopment of  business  and  social  life  which  tends  more  and  more  to  the 
obliteration  of  State  lines  and  the  decrease  of  State  power  as  compared 
with  National  power ;  the  relations  of  the  business  over  which  the  Fed- 
eral Government  is  assuming  control,  of  interstate  transportation  with 
State  transportation,  of  interstate  commerce  with  State  commerce,  are 
so  intimate  and  the  separation  of  the  two  is  so  impracticable,  that  the  tend- 
ency is  plainly  toward  the  practical  control  of  the  National  Government 
over  both.  New  projects  of  National  control  are  mooted ;  control  of  insur- 
ance, uniform  divorce  laws,  child-labor  laws  and  many  others  affecting 
matters  formerly  entirely  within  the  cognizance  of  the  State  are  proposed. 

With  these  changes  and  tendencies  in  what  way  can  the  power  of  the 
States  be  preserved? 


CENTRALIZATION  735 

I  submit  to  your  judgment,  and  I  desire  to  press  upon  you  with  all 
the  earnestness  I  possess,  that  there  is  but  one  way  in  which  the  States 
of  the  Union  can  maintain  their  power  and  authority  under  the  condi- 
tions which  are  now  before  us,  and  that  way  is  by  an  awakening  on  the 
part  of  the  States  to  a  realization  of  their  own  duties  to  the  country  at 
large.  Under  the  conditions  which  now  exist,  no  State  can  live  unto 
itself  alone  and  regulate  its  affairs  with  sole  reference  to  its  own  treasury, 
its  own  convenience,  its  own  special  interests.  Every  State  is  bound  to 
frame  its  legislation  and  its  administration  with  reference  not  only  to 
its  own  special  affairs,  but  with  reference  to  the  effect  upon  all  its  sister 
States,  as  every  individual  is  bound  to  regulate  his  conduct  with  some 
reference  to  its  effect  upon  his  neighbors.  The  more  populous  the 
community  and  the  closer  individuals  are  brought  together  the  more  im- 
perative becomes  the  necessity  which  constrains  and  limits  individual  con- 
duct. If  any  State  is  maintaining  laws  which  afford  opportunity  and 
authority  for  practices  condemned  by  the  public  sense  of  the  whole 
country,  or  laws  which,  though  the  operation  of  our  modern  system  of 
communications  and  business,  are  injurious  to  the  interests  of  the  whole 
country,  that  State  is  violating  the  conditions  upon  which  alone  can  its 
power  be  preserved.  If  any  State  maintains  laws  which  promote  and 
foster  the  enormous  overcapitalization  of  corporations  condemned  by 
the  people  of  the  country  generally,  if  any  State  maintains  laws  designed 
to  make  easy  the  formation  of  trusts  and  the  creation  of  monopolies,  if 
any  State  maintains  laws  which  permit  conditions  of  child  labor  revolt- 
ing to  the  sense  of  mankind,  if  any  State  maintains  laws  of  marriage  and 
divorce  so  far  inconsistent  with  the  general  standard  of  the  nation  as  to 
violently  derange  the  domestic  relations,  which  the  majority  of  the  States 
desire  to  preserve,  that  State  is  promoting  the  tendency  of  the  people 
of  the  country  to  seek  relief  through  the  National  Government  and  to 
press  forward  the  movement  for  National  control  and  the  extinction  of 
local  control.  The  intervention  of  the  National  Government  in  many 
of  the  matters  which  it  has  recently  undertaken  would  have  been  wholly 
unnecessary  if  the  States  themselves  had  been  alive  to  their  duty  toward 
the  general  body  of  the  country.  It  is  useless  for  the  advocates  of  State 
rights  to  inveigh  against  the  supremacy  of  the  constitutional  laws  of  the 
United  States  or  against  the  extension  of  National  authority  in  the  fields 
of  necessary  control  where  the  States  themselves  fail  in  the  performance 
of  their  duty.  The  instinct  for  self-government  among  the  people  of 
the  United  States  is  too  strong  to  permit  them  long  to  respect  any  one's 
right  to  exercise  a  power  which  he  fails  to  exercise.  The  Governmental 
control  which  they  deem  just  and  necessary  they  will  have.  It  may  be 
that  such  control  would  better  be  exercised  in  particular  instances  by 
the  governments  of  the  States,  but  the  people  will  have  the  control  they 
need  either  from  the  States  or  from  the  National  Government ;  and  if 
the  States  fail  to  furnish  it  in  due  measure,  sooner  or  later  constructions 


736  AMERICAN   FEDERAL   GOVERNMENT 

of  the  Constitution  will  be  found  to  vest  the  power  where  it  will  be  exer- 
cised —  in  the  National  Government.  The  true  and  only  way  to  pre- 
serve State  authority  is  to  be  found  in  the  awakened  conscience  of  the 
States,  their  broadened  views  and  higher  standard  of  responsibility  to 
the  general  public;  in  effective  legislation  by  the  States,  in  conformity 
to  the  general  moral  sense  of  the  country ;  and  in  the  vigorous  exercise 
for  the  general  public  good  of  that  State  authority  which  is  to  be  preserved. 


FROM  PRESIDENT   ROOSEVELT'S   SPEECH  AT 
ST.    LOUIS,   OCTOBER,  1907 

Now  that  the  questions  of  government  are  becoming  so  largely  eco- 
nomic, the  majority  of  our  so-called  constitutional  cases  really  turn  not 
upon  the  interpretation  of  the  instrument  itself  but  upon  the  construc- 
tion, the  right  apprehension  of  the  living  conditions  to  which  it  is  to  be 
applied.  The  Constitution  is  now  and  must  remain  what  it  always  has 
been ;  but  it  can  only  be  interpreted  as  the  interests  of  the  whole  people 
demand,  if  interpreted  as  a  living  organism,  designed  to  meet  the  con- 
ditions of  life  and  not  of  death ;  in  other  words,  if  interpreted  as  Marshall 
interpreted  it,  as  Wilson  declared  it  should  be  interpreted. 

The  Marshall  theory,  the  theory  of  life  and  not  of  death,  allows  to 
the  nation,  that  is,  to  the  people  as  a  whole,  when  once  it  finds  a  subject 
within  the  national  cognizance,  the  widest  and  freest  choice  of  methods 
for  national  control,  and  sustains  every  exercise  of  national  power  which 
has  any  reasonable  relation  to  national  objects.  The  negation  of  this 
theory  means,  for  instance,  that  the  nation  —  that  we,  the  90,000,000 
people  of  this  country  —  will  be  left  helpless  to  control  the  huge  cor- 
porations which  now  domineer  in  our  industrial  life,  and  that  they  will 
have  the  authority  of  the  courts  to  work  their  desires  unchecked,  and 
such  a  decision  would  in  the  end  be  as  disastrous  for  them  as  for  us. 

If  the  theory  of  the  Marshall  school  prevails,  then  an  immense  field 
of  national  power,  now  unused,  will  be  developed,  which  will  be  ade- 
quate for  dealing  with  many,  if  not  all,  of  the  economic  problems  which 
vex  us;  and  we  shall  be  saved  from  the  ominous  threat  of  a  constant 
oscillation  between  economic  tyranny  and  economic  chaos.  Our  in- 
dustrial and  therefore  our  social  future  as  a  nation  depends  upon  settling 
aright  this  urgent  question. 

The  constitution  is  unchanged  and  unchangeable  save  by  amendment 
in  due  form.  But  the  conditions  to  which  it  is  to  be  applied  have  under- 
gone a  change  which  is  almost  a  transformation,  with  the  result  that 
many  subjects  formerly  under  the  control  of  the  states  have  come  under 
the  control  of  the  nation. 

A  hundred  years  ago  there  was,  except  the  commerce  which  crawled 
along  our  seacoast  or  up  and  down  our  interior  waterways,  practically 


CENTRALIZATION  737 

no  interstate  commerce.  Now,  by  the  railroad,  the  mails,  the  telegraph, 
and  the  telephone  an  immense  part  of  our  commerce  is  interstate.  By 
the  transformation  it  has  escaped  from  the  power  of  the  state  and  come 
under  the  power  of  the  nation.  Therefore  there  has  been  a  great  practi- 
cal change  in  the  exercise  of  the  national  power,  under  the  acts  of  Con- 
gress, over  interstate  commerce ;  while  on  the  other  hand  there  has  been 
no  noticeable  change  in  the  exercise  of  the  national  power  "  to  regulate 
commerce  with  foreign  nations  and  with  the  Indian  tribes." 

I  believe  that  the  nation  has  the  whole  governmental  power  over  inter- 
state commerce  and  the  widest  discretion  in  dealing  with  the  subject; 
of  course  under  the  express  limits  prescribed  in  the  constitution  for  the 
exercise  of  all  powers,  such  for  instance  as  the  condition  that  "due  pro- 
cess of  law"  shall  not  be  denied.  The  nation  has  no  direct  power  over 
purely  intrastate  commerce  even  where  it  is  conducted  by  the  same 
agencies  which  conduct  interstate  commerce. 

The  courts  must  determine  what  is  national  and  what  is  state  com- 
merce. The  same  reasoning  which  sustained  the  power  of  congress  to 
incorporate  the  United  States  bank  tends  to  sustain  the  power  to  incor- 
porate an  interstate  railroad  or  any  other  corporation  conducting  an 
interstate  business. 

There  are  difficulties  arising  from  our  dual  form  of  government.  If 
they  prove  to  be  insuperable,  resort  must  be  had  to  the  power  of  amend- 
ment. Let  us  first  try  to  meet  them  by  an  exercise  of  all  the  powers  of 
the  national  government  which  in  the  Marshall  spirit  of  broad  interpre- 
tation can  be  found  in  the  constitution  as  it  is.  They  are  of  vast  extent. 

The  chief  economic  question  of  the  day  in  this  country  is  to  provide 
a  sovereign  for  the  great  corporations  engaged  in  interstate  business; 
that  is,  for  the  railroads  and  the  interstate  industrial  corporations. 

At  the  moment  our  prime  concern  is  with  the  railroads.  When  rail- 
roads were  first  built  they  were  purely  local  in  character.  Their  bound- 
aries were  not  coextensive  even  with  the  boundaries  of  one  state.  They 
usually  covered  but  two  or  three  counties.  All  this  has  now  changed. 
At  present  five  great  systems  embody  nearly  four-fifths  of  the  total 
mileage  of  the  country.  All  the  most  important  railroads  are  no  longer 
state  roads,  but  instruments  of  interstate  commerce.  Probably  85  per 
cent  of  their  business  is  interstate  business. 

It  is  the  nation  alone  which  can  with  wisdom,  justice,  and  effective- 
ness exercise  over  these  interstate  railroads  the  thorough  and  complete 
supervision  which  should  be  exercised.  One  of  the  chief,  and  probably 
the  chief,  of  the  domestic  causes  for  the  adoption  of  the  constitution  was 
the  need  to  confer  upon  the  nation  exclusive  control  over  interstate 
commerce. 

But  this  grant  of  power  is  worthless  unless  it  is  held  to  confer  thorough- 
going and  complete  control  over  practically  the  sole  instrumentalities 
of  interstate  commerce  —  the  interstate  railroads. 

47 


738  AMERICAN   FEDERAL   GOVERNMENT 

The  railroads  themselves  have  been  exceedingly  shortsighted  in  the 
rancorous  bitterness  which  they  have  shown  against  the  resumption  by 
the  nation  of  this  long  neglected  power.  Great  capitalists,  who  pride 
themselves  upon  their  extreme  conservatism,  often  believe  they  are  act- 
ing in  the  interests  of  property  when  following  a  course  so  shortsighted 
as  to  be  really  an  assault  upon  property.  They  have  shown  extreme 
unwisdom  in  their  violent  opposition  to  the  assumption  of  complete  con- 
trol over  the  railroads  by  the  federal  government. 

The  American  people  will  not  tolerate  the  happy-go-lucky  system  of 
no  control  over  the  great  interstate  railroads,  with  the  insolent  and  man- 
ifold abuses  which  have  so  generally  accompanied  it.  The  control  must 
exist  somewhere  and  unless  it  is  by  thoroughgoing  and  radical  law  placed 
upon  the  statute  books  of  the  nation  it  will  be  exercised  in  ever-increasing 
measure  by  the  several  states.  The  same  considerations  which  made 
the  founders  of  the  constitution  deem  it  imperative  that  the  nation  should 
have  complete  control  of  interstate  commerce  apply  with  peculiar  force  to 
the  control  of  interstate  railroads  at  the  present  day,  and  the  arguments  of 
Madison  of  Virginia,  Pinckney  of  South  Carolina,  and  Hamilton  and  Jay 
of  New  York  in  their  essence  apply  now  as  they  applied  120  years  ago. 

The  national  convention  which  framed  the  constitution,  and  in  which 
almost  all  the  most  eminent  of  the  first  generation  of  American  statesmen 
sat,  embodied  the  theory  of  the  instrument  in  a  resolution  to  the  effect 
that  the  national  government  should  have  power  in  cases  where  the  sepa- 
rate states  were  incompetent  to  act  with  full  efficiency,  and  where  the 
harmony  of  the  United  States  would  be  interrupted  by  the  exercise  of 
such  individual  legislation. 

The  interstate  railroad  situation  is  exactly  a  case  in  point.  There  will, 
of  course,  be  local  matters  affecting  railroads  which  can  best  be  dealt 
with  by  local  authority,  but  as  national  commercial  agents  the  big  inter- 
state railroads  ought  to  be  completely  subject  to  national  authority. 
Only  thus  can  we  secure  their  complete  subjection  to  and  control  by 
a  single  sovereign,  representing  the  whole  people  and  capable  both 
of  protecting  the  public  and  of  seeing  that  the  railroads  neither  inflict 
nor  endure  injustice. 

Personally  I  firmly  believe  that  there  should  be  national  legislation  to 
control  all  industrial  corporations  doing  an  interstate  business,  includ- 
ing the  control  of  the  output  of  their  securities,  but  as  to  these  the  neces- 
sity for  federal  control  is  less  urgent  and  immediate  than  is  the  case  with 
the  railroads.  Many  of  the  abuses  connected  with  these  corporations 
will  probably  tend  to  disappear  now  that  the  government  —  the  public 
—  is  gradually  getting  the  upper  hand  as  regards  putting  a  stop  to  the 
rebates  and  special  privileges  which  some  of  these  corporations  have 
enjoyed  at  the  hands  of  the  common  carriers.  But  ultimately  it  will  be 
found  that  the  complete  remedy  for  these  abuses  lies  in  direct  and  affirma- 
tive action  by  the  national  government. 


CENTRALIZATION  739 

I  am  not  pleading  for  an  extension  of  constitutional  power.  I  am 
pleading  that  the  constitutional  power  which  already  exists  shall  be  ap- 
plied to  new  conditions  which  did  not  exist  when  the  constitution  went 
into  being.  I  ask  that  the  national  powers  already  conferred  upon  the 
national  government  by  the  constitution  shall  be  so  used  as  to  bring 
national  commerce  and  industry  effectively  under  the  authority  of  the 
federal  government  and  thereby  avert  industrial  chaos. 

My  plea  is  not  to  bring  about  a  condition  of  centralization.  It  is  that 
the  government  shall  recognize  a  condition  of  centralization  in  a  field 
where  it  already  exists.  When  the  national  banking  law  was  passed  it 
represented  in  reality  not  centralization,  but  recognition  of  the  fact  that 
the  country  had  so  far  advanced  that  the  currency  was  already  a  matter 
of  national  concern  and  must  be  dealt  with  by  the  central  authority  at 
Washington.  So  it  is  with  interstate  industrialism,  and  especially  with 
the  matter  of  interstate  railroad  operation  to-day. 

Centralization  has  already  taken  place  in  the  world  of  commerce  and 
industry.  All  I  ask  is  that  the  national  government  look  this  fact  in  the 
face,  accept  it  as  a  fact,  and  fit  itself  accordingly  for  a  policy  of  super- 
vision and  control  over  this  centralized  commerce  and  industry. 


THE  NATION  AND   THE   CONSTITUTION 

BY  JUDGE  CHARLES  F.  AMIDON  l 

OF  late  we  have  heard  quoted  again  and  again,  from  the  Bench  and 
from  the  platform,  the  language  of  Chief  Justice  Taney  in  the  Dred 
Scott  case,  that  the  constitution  "Speaks  not  only  in  the  same  words, 
but  with  the  same  meaning  and  intent  with  which  it  spoke  when  it  came 
from  the  hands  of  its  framers."  The  only  objection  to  that  fine  phrase 
is  that  it  is  not  true.  The  exact  contrary  would  be  nearer  the  truth,  viz : 
That  not  a  single  distinctive  word  or  phrase  in  the  constitution  has  the 
same  meaning  to-day  which  it  had  when  that  instrument  came  from  the 
hands  of  its  framers.  Such  language  is  as  reprehensible  from  that  side 
of  the  controversy  as  on  the  other  side  are  the  words  of  the  impassioned 
phrase-maker  referred  to  by  Senator  Knox  in  his  very  able  address  at 
Yale.  With  a  practical  and  rapidly  progressive  people  like  ours,  the 
Pharisaical  doctrine  that  the  nation  exists  for  the  constitution  instead  of 
the  constitution  for  the  nation,  can  never  obtain  permanent  acceptance. 
The  constitution  performs  its  chief  service  when  it  holds  the  nation  back 
from  hasty  and  passionate  action,  and  compels  it  to  investigate,  consider 
and  weigh  until  it  is  made  sure  that  the  proposed  action  does  not  embody 
the  passion  of  the  hour,  but  the  settled  purpose  of  the  years.  A  change- 
less constitution  becomes  the  protector  not  only  of  vested  rights  but  of 

1  An  address  before  the  American  Bar  Association,  in  1907.  Reprinted  in  part,  by 
permission. 


740  AMERICAN  FEDERAL   GOVERNMENT 

vested  wrongs.  As  Bacon  says,  "He  that  will  not  apply  new  remedies 
must  accept  new  evils,  for  time  is  the  greatest  innovator.  ...  A  for- 
ward retention  of  custom  is  as  turbulent  a  thing  as  any  innovation."  A 
constitution  which  fixedly  restrains  a  people  from  correcting  their  actual 
evils  becomes  associated  in  the  popular  mind  with  the  evils  themselves. 
When  it  performs  that  role,  as  ours  once  did,  it  becomes  in  the  estima- 
tion of  reformers  a  "compact  with  hell,"  and  enlightened  statesmen 
appeal  from  its  provisions  to  a  "higher  law." 

But  it  is  now  insisted  with  a  zeal  such  as  has  not  been  heard  since  John 
Taylor  of  Caroline,  that  if  the  constitution  is  to  be  changed  it  must  be 
done  in  the  manner  which  the  instrument  itself  provides  for  its  amend- 
ment. To  say  that,  however,  is  to  say  that  it  shall  not  be  changed  at  all, 
for  we  are  taught  by  a  century  of  our  history  that  the  constitution  can  no 
longer  be  thus  amended.  Since  1804  more  than  two  thousand  amend- 
ments have  been  proposed.  Many  of  them  have  been  the  subject  of 
much  public  discussion,  have  found  a  place  in  party  platform;  some 
have  received  the  requisite  vote  of  one  branch  of  Congress;  but  with 
the  exception  of  the  war  amendments,  all  have  failed  of  adoption. 

The  first  twelve  amendments  may  be  regarded  as  merely  formal,  or 
as  the  result  of  the  forces  which  produced  the  instrument  itself.  It 
required  the  fierce  passions  aroused  by  the  civil  war  to  bring  about  the 
only  direct  amendment  of  the  constitution  which  has  occurred  apart 
from  the  period  of  its  adoption.  Even  these  amendments  could  not 
have  secured  the  requisite  number  of  states  had  it  not  been  for  the 
coercion  of  military  power  and  political  influence  such  as  every  lover 
of  our  country  will  hope  can  never  be  again  employed  for  such  a  purpose. 
This,  however,  was  not  the  worst  feature  of  those  amendments.  The 
fierce  passion  necessary  to  secure  their  adoption  was  embodied  in  the 
amendments  themselves.  As  a  result  they  have  been  nullified  in  some 
of  their  most  important  provisions,  and  as  to  other  features  found  in  the 
Fourteenth  Amendment,  the  Supreme  Court  in  order  to  prevent  their 
confounding  our  whole  system  of  national  and  local  government,  was 
compelled  in  the  Slaughter  House  Cases  to  resort  to  a  construction 
which  did  violence  to  the  language  of  the  amendment,  and  defeated  the 
avowed  purpose  of  the  men  who  employed  that  language.  The  most 
impressive  lesson  taught  by  the  war  amendments  is  that  the  constitu- 
tion can  not  be  amended  in  the  manner  which  it  provides  except  as  the 
result  of  passions  which  wholly  disqualify  the  nation  for  the  work  of 
constitutional  amendment. 

The  vast  enlargement  of  our  country  has  made  the  method  of  amend- 
ment provided  by  the  fathers  far  more  difficult  than  they  contemplated 
at  the  time.  They  also  believed  that  they  had  forever  foreclosed  the  pos- 
sibility of  government  by  party,  and  the  inauguration  of  that  system  has 
made  the  plan  which  they  devised  unworkable;  for  any  amendment 
which  is  proposed  by  one  party  encounters  the  opposition  of  the  other. 


CENTRALIZATION  741 

If  objection  does  not  exist  to  the  subject-matter,  it  is  called  forth  by 
partisan  considerations.  No  amendment,  therefore,  is  possible  except 
when  one  party  controls  the  legislatures  of  three-fourths  of  the  states, 
and  a  two-thirds  majority  in  Congress.  This  condition  has  not  existed 
since  the  early  part  of  the  last  century,  nor  is  it  ever  likely  to  occur  again. 

But  probably  the  greatest  force  opposed  to  constitutional  amendment 
is  the  fear  of  radicalism  by  the  large  business  interests  of  the  country. 
The  wave  of  socialistic  tendency,  which  is  now  sweeping  over  all  western 
nations  has  greatly  added  to  this  alarm.  Property  knows  that  it  is  safe 
under  the  constitution  as  it  is.  There  is  a  very  general  understanding 
that  formal  amendment  is  impossible.  Every  year  that  goes  by  without 
such  a  change  strengthens  that  understanding;  but  if  its  power  were 
once  broken  by  an  actual  amendment,  it  is  impossible  to  foresee  the 
forces  that  might  be  set  in  operation.  Hence  with  business  interests 
it  is  the  fact  of  amendment  that  controls,  and  not  the  subject-matter. 

It  is  not  only  true  that  the  constitution  can. not  be  amended  in  the 
method  which  it  provides,  but  that  such  a  change  is  neither  needed  nor 
best.  Formal  amendment  is  not  suitable  to  bring  about  those  slight 
but  steady  modifications  of  fundamental  law  which  adapt  it  to  the  pro- 
gressive life  of  the  nation.  It  is  far  too  violent  a  remedy  for  that  purpose. 
The  constitution  has  been  and  ought  to  be  accommodated  to  the  ever- 
changing  conditions  of  society  by  a  process  as  gradual  as  the  changes 
themselves.  Like  the  Kingdom  of  Heaven  amendments  such  as  these 
come  not  by  observation.  No  political  prophet  can  say  of  them,  Lo, 
here !  or  Lo,  there !  As  the  result  of  more  than  a  hundred  years  of  ex- 
perience the  nation  has  become  acquainted  with  this  process  of  amend- 
ment and  is  satisfied  with  it.  It  must  now  be  accepted  as  a  part  of  our 
frame  of  government  of  equal  validity  with  the  constitution  itself. 

But  if  the  constitution  is  changed  by  interpretation  will  it  not  be  en- 
tirely swept  away  by  the  process?  We  hear  much  of  this  argument  in 
terrorem.  In  the  minds  of  its  advocates  the  constitution  is  a  kind  of  St. 
Rupert's  drop,  so  fragile  that  if  its  elements  be  disturbed  in  the  slightest 
degree,  the  entire  combination  will  explode.  Experience  tells  us  that 
it  is  made  of  sterner  stuff.  After  a  century  of  such  interpretation  by 
which  the  instrument  has  been  so  altered  that  Mr.  Ford  tells  us  its 
authors  would  not  know  it,  it  is  to-day  performing  its  functions  with 
far  greater  vigor  than  during  the  period  following  its  adoption.  Being 
a  great  instrument  of  government  it  can  not  be  read  in  the  library.  As 
the  late  Justice  Miller  stated  to  a  company  of  judges  and  lawyers  at  St. 
Paul  a  short  time  before  his  death:  "The  great  questions  of  constitu- 
tional law  are  not  to  be  finally  settled  by  nine  men,  however  wise,  taking 
them  off  into  a  room  and  reading  and  studying  about  them.  That  is 
the  way  we  start  the  process.  We  place  the  decision  the  best  we  can, 
according  to  that  light,  and  then  see  how  it  works  in  its  actual  applica- 
tion to  the  national  life.  Very  frequently  that  illumination  shows  us 


742  AMERICAN   FEDERAL   GOVERNMENT 

that  we  have  gone  far  to  one  side  of  the  true  line.  With  this  instruction 
of  experience  we  place  the  next  case  on  the  other  side  and  observe  its 
application  and  so  on,  from  time  to  time  adding  to  our  thought  and 
study  the  results  of  experience  and  observation,  we  finally  evolve  the 
true  solution  by  a  process  of  exclusion  and  inclusion.  The  meaning  of 
the  constitution  is  to  be  sought  as  much  in  the  national  life  as  in  the 
dictionary." 

In  our  constitutional  theory  we  habitually  assume  that  the  provisions 
of  the  constitution  have  but  one  meaning,  and  that  plain  and  precise. 
But  this  is  not  its  real  character.  As  Marshall  declares  in  McCulloch  v. 
Maryland,  "Its  nature  requires  that  only  its  great  outlines  should  be 
marked,  and  its  important  objects  designated.  ...  It  was  intended  to 
endure  for  ages  to  come,  and  to  be  adapted  to  the  various  crises  in  human 
affairs."  An  instrument  of  such  a  character  must  necessarily  leave  a 
wide  latitude  for  construction.  The  fact  that  the  Supreme  Court  in 
constitutional  cases  so  frequently  stand  five  to  four,  each  division  as- 
signing weighty  reasons  for  diametrically  opposite  views,  shows  plainly 
how  much  the  constitution  in  actual  application  is  a  matter  of  interpre- 
tation. Now  that  questions  of  government  are  becoming  so  largely 
economic,  the  majority  of  our  so-called  constitutional  cases  turn  not 
upon  the  interpretation  of  the  instrument  itself,  but  upon  the  construc- 
tion of  the  living  conditions  to  which  it  is  to  be  applied.  Let  me  illustrate : 
A  statute  of  New  York  provided  that  women  should  not  be  employed 
in  manufacturing  establishments  between  the  hours  of  nine  o'clock  at 
night  and  six  o'clock  in  the  morning.  In  a  recent  decision  of  the  Court 
of  Appeals  of  that  state,  this  law  is  declared  unconstitutional  upon  the 
ground  that  there  is  nothing  in  the  nature  and  duties  of  woman  which 
justify  the  legislature  in  discriminating  as  to  her  employment.  The 
gist  of  this  decision  is  not  the  meaning  of  the  constitution,  but  the  effect 
of  labor  in  a  manufacturing  establishment  upon  the  health  of  woman 
and  her  ability  to  perform  the  primary  duties  of  home  and  motherhood ; 
and  while  none  of  us  would  question  the  ability  of  the  court  to  interpret 
the  constitution  wisely,  some  at  least  would  feel  that  in  that  case  it  fell 
into  grievous  error  in  its  interpretation  of  life.  Constitutional  cases  are 
in  the  same  manner  frequently  decided  not  upon  the  language  of  the 
constitution,  but  upon  conflicting  notions  of  life  in  which  the  courts 
assert  doctrines  at  variance  with  both  popular  and  legislative  judgment. 
The  danger  of  this  practice  is  obvious.  It  gives  us  a  government  out  of 
a  law  library,  which,  as  Napoleon  said,  is  the  worst  of  all  forms  of 
government. 

Courts  are  very  fond  of  declaring  that  in  the  field  of  constitutional 
law  they  never  exercise  political  power,  but  simply  declare  the  private 
rights  of  parties.  This  is  true  as  to  the  form  but  untrue  as  to  the  result. 
The  ultimate  effect  of  every  constitutional  decision  is  not  only  to  declare 
the  rights  of  the  litigants,  but  to  define  the  powers  of  government.  If 


CENTRALIZATION  743 

the  constitution  were  precise,  and  capable  of  but  one  construction, 
then  the  courts  in  construing  it  would  be  simply  declaring  the  rule  and 
in  no  way  making  it.  But  in  the  case  of  the  federal  constitution  in  partic- 
ular, its  provisions  are  so  general  as  to  leave  a  wide  latitude  for  judicial 
construction ;  and  within  the  scope  of  that  latitude  the  court  in  constru- 
ing the  constitution  is  exercising  a  political  power  second  only  to  that 
of  the  convention  that  framed  the  instrument. 

In  the  attempt  to  catch  our  constitution  in  a  statement,  we  have  been 
frequently  told  of  late  that  "the  powers  of  the  federal  government  re- 
main the  same";  that  the  only  change  which  has  been  wrought  in  our 
progressive  history  is  the  change  of  conditions  to  which  those  powers 
are  applied.  We  would  all  agree,  I  think,  that  the  powers  of  the  federal 
government  remain  the  same  in  number;  but  can  any  candid  lawyer 
say  they  remain  the  same  in  extent  ?  It  is  quite  true  that  "no  independ- 
ent and  unmentioned  power"  can  rightfully  be  added  to  the  federal 
government.  But  even  such  accurate  statements  can  not  settle  constitu- 
tional questions.  When  the  instrument  comes  to  be  applied  to  a  given 
case  the  question  will  still  be  open,  Is  the  power  which  has  been  attempted 
an  independent  power,  or  is  it  so  related  to  one  of  the  great  powers  of 
the  constitution  as  to  be  an  appropriate  means  for  its  execution  ?  That 
question  presents  the  old  puzzle  of  the  criterion  of  classification  which 
Austin  taught  us  was  the  most  difficult  problem  of  law,  and  which  Madi- 
son pointed  out  in  the  Federalist  to  be  as  impossible  of  definite  solution 
in  the  case  of  the  constitution  as  it  has  been  in  natural  history.  What 
to  Marshall  was  an  appropriate  means  for  collecting  and  disbursing  the 
public  revenue,  was  to  Jefferson  and  his  school  the  exercise  of  an  inde- 
pendent power.  It  is  because  the  constitution  is  thus  general  that  it  has 
been  possible  to  adapt  it  to  changing  conditions,  and  make  it  the  benefi- 
cent organ  of  a  progressive  nation. 

What  is  needed  to-day  is  not  that  the  constitution  shall  be  construed 
to  mean  precisely  what  it  meant  to  Marshall  or  to  Miller,  Field,  and 
Bradley,  but  that  it  shall  be  applied  to  present  conditions  by  the  same 
method  and  in  the  same  spirit  wherewith  they  applied  it  to  the  condi- 
tions of  their  times.  In  the  performance  of  this,  their  highest  duty,  the 
federal  courts  are  no  part  of  the  administration.  They  will  not  answer 
to  its  needs  or  its  criticism.  But  they  are  a  part  of  the  nation,  and  in 
the  past  have  responded,  and  ought  always  to  respond  to  the  deep, 
abiding  organic  changes  in  the  national  life. 

There  never  was  a  time  when  the  interpretation  of  the  constitution 
required  a  more  careful  consideration  of  living  conditions  than  to-day. 
Within  the  last  fifty  years  economic  forces  have  been  introduced  into 
our  life  that  are  as  revolutionary  of  preexisting  conditions  as  the  intro- 
duction of  gun-powder  was  of  the  state  of  feudalism.  Seward's  state- 
ment in  the  debate  of  1850  that  "Commerce  is  the  god  of  boundaries 
and  no  man  now  living  can  tell  its  ultimate  decree"  is  far  more  true  at 


744  AMERICAN   FEDERAL   GOVERNMENT 

present  than  when  it  was  uttered.  When  the  constitution  was  adopted 
the  unit  of  our  social  and  business  life  was  the  commonwealth.  With  the 
exception  of  the  foreign  and  coasting  trade,  the  commerce  and  industry 
of  each  state  was  confined  to  its  own  borders.  The  union  was  political 
instead  of  industrial  or  commercial.  To-day  our  industry  and  our  com- 
merce are  national.  They  are  made  aware  of  state  lines  only  by  conflict- 
ing and  often  narrowly  selfish  enactments.  The  units  of  commercial 
and  industrial  organization  extend  to  many  states,  often  to  the  entire 
nation.  Instead  of  being  required  to  obey  one  master,  business  is  com- 
pelled to  obey  many.  Coincident  with  this  enlargement  of  business 
enterprise  to  embrace  different  states,  has  occurred  a  revolution  in  state 
activity.  During  the  first  half  of  the  Nineteenth  Century  the  doctrine  of 
laissez-faire  was  the  fundamental  principle  of  government.  The  state  left 
commerce  and  industry  to  private  control.  To-day  that  is  all  changed. 
Government  is  now  present  in  all  lines  of  business.  When  the  state 
regulated  but  little,  business  was  not  much  concerned  who  did  the  reg- 
ulating. But  now  that  all  governments  are  competing  in  their  zeal  for 
regulation,  whether  one  government  or  many,  the  nation  or  the  states, 
shall  do  the  regulating,  becomes  a  matter  of  paramount  importance. 
These  changed  conditions  in  our  actual  life  compel  a  reconsideration 
of  our  divided  governmental  authority  to  see  what  now  belongs  to  the 
nation,  and  what  to  the  states.  The  problem  is  not  the  same  as  it  was; 
it  can  not  be  answered  by  reading  history  or  studying  precedents. 

The  new  condition  has  manifested  itself  most  conspicuously  in  two 
fields,  the  railroad  and  the  interstate  industrial  corporation.  At  the 
beginning  the  railroads  were  local.  There  was  a  time  when  in  making 
a  shipment  of  freight  from  New  York  to  Buffalo,  at  least  three  different 
bills  of  lading  were  required.  Now  five  great  systems  embody  more 
than  three-fourths  of  the  total  mileage  of  the  country,  and  the  work  of 
consolidation  is  still  in  progress.  There  are  no  longer  state  roads,  but 
all  are  instruments  of  interstate  commerce.  Actual  statistics  are  want- 
ing, but  persons  in  a  position  to  know  are  of  the  opinion  that  the  local 
business  of  the  railroads  does  not  exceed  fifteen  per  cent  of  their  entire 
traffic.  In  a  case  tried  in  one  of  our  western  states  a  few  years  ago,  it 
was  judicially  found  that  the  local  business  there  involved  amounted 
to  less  than  three  per  cent.  In  the  face  of  these  conditions,  it  is  impos- 
sible to  maintain  over  common  carriers  the  manifold  control  of  the  dif- 
ferent states  and  the  federal  government. 

There  is  no  way  in  which  local  business  can  be  separated  from  through 
business.  The  same  roadbed  serves  both ;  both  are  carried  in  the  same 
train  and  by  the  same  crew.  Back  of  every  schedule  of  rates  prescribed 
by  government  is  the  question,  Are  those  rates  reasonably  compensatory  ? 
Under  our  present  system  that  question  as  to  state  rates  must  be  decided 
solely  upon  local  business,  and  as  to  interstate  rates  solely  upon  inter- 
state business.  The  court  can  not  look  to  the  entire  traffic  in  judging 


CENTRALIZATION  745 

of  the  reasonableness  of  either.  While  it  is  possible  to  ascertain  what 
revenue  is  derived  from  each  class,  it  is  absolutely  impossible  thus  to 
distribute  the  cost  of  operation  and  maintenance.  The  evidence  upon 
that  subject  is  wholly  speculative  and  conjectural,  consisting  entirely 
of  opinion  testimony  given  by  parties  having  a  vital  interest  in  the  result 
of  the  litigation.  In  actual  operation  the  railroads  do  not,  and  can  not 
keep  the  two  kinds  of  commerce  separate.  Why  then  should  the  law 
attempt  to  divide  that  which  in  actual  life  is  a  unit  and  indivisible  ? 

Whenever  a  state  prescribes  a  schedule  of  rates  for  local  business,  it 
thereby  directly  and  necessarily  regulates  interstate  business  as  well. 
There  can  be  no  sudden  lifts  and  falls  at  state  lines.  They  have  no  rela- 
tion whatever  to  the  cost  of  service,  and  can  afford  no  justification  for 
discrimination  in  rates.  As  the  result  of  the  schedule  of  rates  prescribed 
by  the  State  of  Minnesota  during  the  past  winter,  the  rates  on  the  west- 
ern side  of  an  invisible  line  were  from  twenty-five  per  cent  higher  than 
those  on  the  eastern  side.  The  railroads  could  not  maintain  both  these 
rates  without  discriminating  against  North  Dakota  points  in  a  manner 
which  would  constitute  a  gross  violation  of  that  portion  of  the  interstate 
commerce  act  which  forbids  discrimination  against  any  locality.  The 
necessary  result  of  the  enforcement  of  the  local  rates  was  to  compel  a 
reduction  of  all  through  rates.  This  the  Supreme  Court  has  decided  is 
such  a  direct  interference  with  interstate  commerce  as  to  render  the  action 
of  the  state  void.  But  further,  if  one  state  may  prescribe  a  schedule  of 
rates  all  states  may,  and  the  inevitable  result  of  such  a  practice  is  to 
place  the  whole  body  of  interstate  commerce  under  the  actual  domination 
of  state  laws.  In  that  way  the  authority  which  extends  to  only  fifteen 
per  cent  of  the  business,  regulates  the  entire  business.  The  necessary 
consequence  is  that  either  the  nation  must  take  control  of  railroad 
transportation  within  the  states  or  the  states  will  take  control  of  such 
transportation  among  the  states.  We  deceive  ourselves  by  a  mere  form  of 
words  when  we  speak  of  the  separate  regulation  of  local  business  by  the 
state  and  through  business  by  the  nation.  The  state  can  not  formulate 
and  enforce  any  schedule  of  rates  which  will  not  necessarily  and  directly 
regulate  interstate  rates;  neither  can  the  nation  formulate  and  enforce 
any  schedule  of  interstate  rates  which  will  not  necessarily  and  directly 
change  local  rates.  The  truth  is  that  governmental  regulation  of  rates 
is  not  a  regulation  of  commerce,  but  of  the  railroads  as  an  instrument 
of  commerce,  and  when  the  nation  and  the  state  both  prescribe  to  a  rail- 
road a  schedule  of  rates,  they  are  both  regulating  the  same  thing.  This 
gives  rise  to  a  conflict  of  authority  which  Marshall  declared  in  Gibbons 
v.  Ogden  ought  never  to  be  permitted  to  occur. 

The  chief  domestic  cause  for  the  adoption  of  the  constitution  was  to 
destroy  the  power  of  states  over  interstate  commerce.  But  does  not 
their  control  of  railroads  reestablish  that  authority  ?  To  say  that  states 
shall  not  regulate  commerce  among  the  states,  and  at  the  same  time 


746  AMERICAN   FEDERAL   GOVERNMENT 

concede  to  them  power  to  regulate  the  only  instrumentalities  by  which 
that  commerce  is  carried  on,  is  to  establish  in  practice  what  we  deny  in 
theory.  Hitherto  state  regulation  has  been  inefficient  and  for  that  reason 
alone  its  localizing  power  has  not  become  manifest.  But  now,  through 
the  investigations  of  economists  and  commissions,  the  general  campaign 
of  publicity,  experience  in  rate  litigation,  the  decreased  influence  of 
railroads  over  legislative  bodies,  there  has  come  a  new  era  in  govern- 
mental regulation  of  carriers.  State  authority  is  becoming  organized, 
energetic  and  effective.  If  continued  it  will  work  its  inevitable  results. 
In  Commerce,  as  in  politics,  state  governments  will  represent  state 
interests.  No  rivalry  can  surpass  that  of  our  commercial  centers,  and 
the  states  in  which  they  are  located,  let  their  power  over  carriers  become 
effective,  will  exercise  that  power  in  support  of  their  own  cities.  This 
is  not  theory.  Only  recently  the  commission  of  one  of  our  most  aggres- 
sive western  states  warned  the  railroads  by  a  written  communication 
that  if  they  were  not  more  considerate  of  the  state  as  to  interstate  rates, 
the  commission  would  retaliate  by  the  exercise  of  its  powers  over  local 
affairs.  Other  commissions,  while  not  thus  frank  in  their  avowals,  have 
been  equally  local  in  their  practices.  The  severest  critic  of  railroads 
can  not  deny  that  their  policy  has  been  splendidly  national,  and  the  most 
potent  single  factor  in  the  creation  of  our  vast  domestic  commerce.  In 
thus  maintaining  the  commercial  supremacy  of  the  nation,  they  have 
been  compelled  to  withstand  the  importunities  and  fierce  wrath  of  local 
interests.  Now,  however,  the  conflict  is  to  be  transferred  from  this  field 
of  economics  to  the  field  of  government.  Localism  is  to  speak  not  by 
petition  but  by  statute.  Under  this  regime  as  governmental  control 
increases  in  efficiency,  the  irrepressible  conflict  between  local  and  na- 
tional interests  will  increase  in  directness  as  well  as  in  the  frequency  of 
its  exhibition  and  the  intensity  of  the  passions  aroused.  It  has  already 
brought  us  to  the  verge  of  civil  war  in  North  Carolina,  and  been  the 
occasion  of  the  sharpest  acrimony  in  other  states.  Such  a  conflict  must 
in  the  end  result  in  the  complete  supremacy  of  one  authority  or  the  other. 

It  is  vain  to  appeal  to  states,  as  did  Secretary  Root  in  his  New  York 
address,  to  subordinate  local  advantage  to  the  general  welfare.  Our 
whole  history  is  a  confirmation  of  the  statement  of  Mr.  Pinckney  in  the 
constitutional  convention  that  "States  pursue  their  interests  with  less 
scruple  than  individuals."  They  exhibit  all  that  lack  of  conscience 
characteristic  of  those  who  exercise  delegated  power.  As  Justice  Miller 
points  out  in  his  lectures  on  the  constitution,  had  it  not  been  for  the 
dominant  authority  of  the  central  government,  the  general  welfare  would 
have  been  as  completely  sacrificed  to  local  selfishness  under  the  constitu- 
tion as  it  was  under  the  articles  of  confederation.  What  states  require 
is  not  exhortation  but  authority. 

The  situation  in  the  field  of  industry  presents  the  same  general  features. 
To  abolish  local  control  over  matters  extending  outside  of  the  state  was 


CENTRALIZATION  747 

the  origin  not  only  of  the  article  conferring  power  on  the  national  govern- 
ment to  regulate  commerce  among  the  states,  but  also  of  those  provi- 
sions which  forbid  states  to  lay  imposts  or  duties  on  exports  or  imports, 
and  which  secure  to  the  citizens  of  each  state  the  privileges  and  immuni- 
ties of  citizens  of  the  several  states.  These  restrictions  were  placed  in 
the  constitution  not  so  much  that  men  might  be  free,  as  that  national 
commerce  and  industry  might  be  free.  They  have  been  largely  nullified 
in  actual  life  by  the  fact  that  business  is  now  carried  on  by  corporations 
instead  of  persons.  When  the  constitution  was  adopted  only  twenty- 
one  corporations  had  been  formed  in  the  United  States.  These  were 
mainly  for  the  construction  of.  canals  and  turnpikes.  There  was  but  one 
bank  and  two  trading  companies.  As  business  agencies  corporations 
had  no  part  either  in  life  or  thought,  consequently  they  had  no  place  in 
the  constitution.  The  Supreme  Court  has  held  that  they  are  not  citizens 
within  the  meaning  of  the  Fifth  Amendment,  and  that  each  state  may 
either  wholly  exclude  them,  or  impose  as  conditions  of  their  entering  or 
remaining  in  the  state  such  terms  as  local  policy  or  interest  may  sug- 
gest. The  result  is  that  business  which  was  intended  to  be  free,  has  in 
fact  become  subject  to  local  authority.  The  abuses  of  corporate  organi- 
zation and  management  have  heretofore  commended  this  exercise  of 
local  control.  Ultimately,  however,  we  shall  become  increasingly  aware 
of  its  injustice  and  folly.  Business  can  not  be  conducted  in  this  century 
except  through  the  agency  of  corporations;  but  the  very  enlargement 
of  that  agency  has  caused  industry,  the  same  as  commerce,  to  overleap 
the  bounds  of  states,  and  thus  become  subject  to  governments  whose 
only  interest  in  them  is  that  of  the  publican.  "Federal,"  "National," 
"Union,"  "United  States,"  "International,"  "American,"  these  terms 
find  a  place  in  the  names  of  the  corporations  that  are  carrying  on  our 
large  business  enterprises  and  are  not  mere  high-sounding  titles,  but  are 
truly  indicative  of  the  scope  of  the  business  conducted.  They  have 
taken  national  titles  because  their  business  is  national  and  international. 
While  engaged  in  the  preparation  of  this  paper  I  employed  three  young 
men  in  different  libraries  to  examine  and  summarize  state  laws  passed 
since  1890,  directed  against  foreign  corporations  solely  upon  the  ground 
of  their  alienage.  My  purpose  was  to  institute  a  comparison  between 
laws  of  that  character  now  in  force,  and  discriminatory  statutes  passed 
by  the  several  states  under  the  articles  of  confederation.  But  the  mass 
of  material  turned  in  by  these  investigators  was  so  great  as  to  surpass 
any  leisure  at  my  command  for  its  study  and  classification.  The  reports, 
however,  leave  no  room  for  doubt  that  the  laws  now  in  force  are  both 
more  vicious  in  character  and  varied  in  form  than  were  those  of  the 
earlier  period.  At  that  time  discrimination  was  confined  in  the  main 
to  taxation  by  states  having  ports  of  entry  against  those  who  had  them 
not.  To-day  they  embrace  not  only  double,  and  frequently  manifold 
taxation,  but  the  thousand  forms  of  regulation  which  recent  govern- 


748  AMERICAN  FEDERAL   GOVERNMENT 

mental  activity  in  the  field  of  business  has  developed.  A  condition  which 
was  then  deemed  sufficient  to  cause  the  framing  and  adoption  of  the 
constitution  ought  now  to  be  adequate  to  compel  the  exercise  of  the 
power  which  the  constitution  vested  in  the  federal  government  for 
the  very  purpose  of  controlling  such  conditions. 

How  far  may  the  national  government  go  in  the  control  of  those  matters 
which  have  become  in  fact  national  ?  The  situation  fits  exactly  the  terms 
of  the  resolution  passed  in  the  convention  that  framed  the1  constitution, 
and  which  was  the  source  of  all  the  powers  and  restrictions  embodied 
in  that  instrument.  It  presents  a  case  "to  which  the  separate  states  are 
incompetent  and  in  which  the  harmony  of  the  United  States  may  he 
interrupted  by  the  exercise  of  individual  legislation."  As  to  railroads 
there  is  no  more  reason  why  they  should  be  subject  to  a  divided  authority 
than  there  is  in  the  case  of  navigation.  There  will,  of  course,  be  in  the 
one  case  as  in  the  other,  local  matters  that  can  be  best  dealt  with  by 
local  authority.  But  as  to  all  that  affects  them  as  commercial  agencies, 
whether  that  commerce  be  local  or  interstate,  the  railroad  is  a  unit; 
its  activities  are  national,  and  it  ought  to  be  subject  solely  to  national 
authority.  Divided  control  is  inefficient  in  protecting  the  public,  and 
grossly  unjust  in  the  burdens  which  it  places  upon  the  carrier.  During 
the  last  winter  there  were  passed  in  the  states  west  of  the  Mississippi 
River  one  hundred  and  seventy-eight  statutes  dealing  directly  with 
transportation  and  its  instrumentalities.  The  number  of  such  statutes 
now  in  force  throughout  the  entire  country  extends  well  into  the  thou- 
sands. They  are  conflicting,  oppressive,  inefficient.  They  seldom  rep- 
resent intelligent  investigation,  but  in  the  main  have  had  their  origin 
in  agitation,  often  in  popular  frenzy.  State  legislatures  have  not  yet 
learned  that  due  process  of  legislation,  like  due  process  of  law,  proceeds 
upon  inquiry,  and  legislates  only  after  hearing.  Protection  to  the  public 
and  justice  to  the  carrier  alike  unite  in  the  demand  for  a  single  govern- 
mental control.  The  power  under  the  commerce  clause  of  the  constitu- 
tion is  plain.  The  decisions  of  the  Supreme  Court  have  placed  that 
subject  beyond  the  realm  of  controversy.  If  the  railroad  as  an  instru- 
ment of  commerce  can  only  be  dealt  with  justly  and  efficiently  by  a 
single  authority  the  federal  government  may  assert  and  maintain  its 
exclusive  jurisdiction.  Regulation  is  now  inefficient  because  divided. 
If  the  federal  government  shall  take  exclusive  control,  it  will  then  be 
responsible  alone  for  such  a  control  as  shall  be  both  efficient  and  just. 
Public  opinion  will  have  a  single  point  for  its  direction,  and  will  not  be 
dissipated  among  many  conflicting  authorities.  The  subject  does  not 
demand  separate  rules  for  the  separate  states.  Their  action  refutes  such 
a  doctrine.  By  the  legislation  of  the  past  winter  Virginia  and  Ohio, 
Pennsylvania  and  Minnesota  are  combined  in  the  same  passenger  rate, 
though  they  vary  as  five  to  one,  in  density  of  population  and  travel.  The 
subject  is  national,  and  the  federal  government  with  its  national  outlook 


CENTRALIZATION  749 

can  by  organized  investigation  and  accumulated  experience  best  acquire 
the  skill  and  knowledge  necessary  for  its  just  and  efficient  regulation. 

As  to  interstate  industrial  corporations,  the  subject  is  of  much  more 
recent  development  and  the  necessity  for  federal  control  is  less  urgent. 
It  may  well  happen  that  many  of  the  abuses  in  this  field  will  disappear 
with  the  abolition  of  rebates  and  the  other  special  privileges  which  such 
corporations  have  enjoyed  at  the  hands  of  carriers.  The  evil  arising 
from  hostile  state  enactments  may  be  remedied  by  a  change  of  emphasis 
on  this  subject  in  the  decisions  of  the  Supreme  Court.  Heretofore  that 
tribunal  has  been  governed  in  such  cases  solely  by  a  consideration  of  the 
nature  of  the  corporate  being.  But  the  present  tendency  in  corporate 
law  is  to  look  at  rights  rather  than  the  nature  of  the  being  possessing 
them,  and  if  the  court  shall  adopt  that  view,  it  may  yet  hold  that  alienage 
alone  is  not  a  proper  basis  for  discriminatory  legislation;  that  legisla- 
tion based  solely  upon  that  ground  constitutes  a  denial  of  the  equal 
protection  of  the  laws.  The  late  case  of  American  Smelting  Co.  v. 
Colorado  affords  encouragement  to  expect  such  a  change. 

If,  however,  federal  control  shall  be  found  necessary  to  correct  the 
evils  and  protect  the  rights  of  interstate  industrial  corporations,  authority 
for  its  exercise  exists  in  the  commerce  clause  of  the  constitution  as  already 
interpreted.  It  has  been  decided  by  the  highest  court  that  "The  power 
to  regulate  commerce  among  the  several  states  is  vested  in  Congress  as 
absolutely  as  it  would  be  in  a  single  government  having  in  its  constitution 
the  same  restrictions  as  are  found  in  the  constitution  of  the  United  States." 
That  court  has  also  held  that  as  a  means  of  executing  this  authority  Con- 
gress may  create  corporations  for  the  purpose  of  carrying  on  interstate 
commerce.  One  branch  of  that  commerce  is  traffic  or  exchange  among 
the  several  states,  and  if  national  corporations  may  be  created  for  the 
purpose  of  carrying  on  that  branch  of  interstate  commerce  which  con- 
sists of  transportation,  as  was  done  in  the  case  of  the  Pacific  Railroads, 
the  same  method  may  be  adopted  as  to  the  other  branch  of  interstate 
commerce  which  consists  of  traffic  and  exchange.  Can  a  corporation 
created  for  this  purpose  be  also  authorized  to  produce  the  articles  in 
which  it  deals?  In  thought,  manufacture  and  commerce  may  be  sepa- 
rated, but  in  business  the  former  is  always  combined  with  the  latter.  No 
one  ever  manufactured  except  for  the  purpose  of  sale.  Under  the  pres- 
ent regime  of  wide  markets,  large  sales,  and  small  profits,  commerce 
has  become  the  paramount  feature  even  of  manufacturing  enterprises. 
The  incidental  powers  which  Congress  may  confer  upon  a  corporation 
created  for  federal  purposes  were  clearly  defined  in  the  litigation  arising 
out  of  the  United  States  Banks.  There  the  federal  feature  was  the  col- 
lecting and  disbursing  of  the  national  revenue.  But  to  accomplish  this 
result  a  corporation  was  created,  authorized  to  do  a  general  banking 
business  and  to  establish  branches  for  that  purpose  in  the  several  states. 
Of  the  actual  business  transacted,  the  federal  feature,  though  of  capital 


750  AMERICAN   FEDERAL   GOVERNMENT 

importance  to  the  nation,  was  a  subordinate  function  of  the  corporation 
as  a  business  concern.  The  opposition  of  the  states  was  largely  grounded 
upon  this  consideration.  It  was  denied  that  they  were  agents.  A  reso- 
lution by  the  legislature  of  Ohio  put  the  matter  plainly:  "We  resist  the 
shaving  shops  of  a  club  of  foreigners  located  among  us  without  our  con- 
sent." But  the  power  of  the  federal  government  to  create  the  bank  and 
to  exempt  it  from  all  local  authority  as  to  its  entire  business  was  vindi- 
cated in  the  fullest  measure.  Under  the  national  bank  act  this  authority 
has  been  carried  much  further.  Usury  and  its  consequences  have  been 
defined  and  all  state  criminal  statutes  affecting  the  transactions  of  these 
banks,  or  their  agents  or  officers,  have  been  held  null  and  void.  Now 
apply  these  well-established  doctrines  to  corporations  created  for  the 
purpose  of  carrying  on  that  branch  of  interstate  commerce  which  con- 
sists of  traffic  and  exchange.  Would  they  not  fully  sustain  the  authority 
of  Congress  to  confer  upon  such  corporations  manufacturing  as  well  as 
commercial  powers?  Would  not  the  commercial  activities  of  such  a 
corporation  which  confessedly  fall  within  the  scope  of  the  commerce 
clause  of  the  constitution  greatly  surpass  in  importance  the  functions  of 
the  United  States  Bank  which  consisted  in  collecting  and  disbursing  the 
public  revenue?  And  if  a  bank  created  for  that  subordinate  federal 
function  might  be  given  the  power  of  carrying  on  a  general  banking 
business,  why  could  not  a  corporation  created  for  the  purpose  of  carry- 
ing on  interstate  commerce,  which  would  be  a  capital  feature  of  its 
business,  be  at  the  same  time  authorized  to  produce  either  in  whole  or 
in  part  the  articles  which  it  applied  to  that  commerce?  It  is  said  that 
carrying  on  interstate  commerce  is  not  the  exercise  of  a  federal  power, 
as  was  the  collection  and  disbursement  of  the  public  revenue,  and  that 
is  conceded ;  but  regidating  interstate  commerce  is  a  federal  power,  and 
a  corporation  created  as  a  means  of  such  regulation  may  be  freed  from 
all  state  action  that  will  interfere  with  the  purpose  of  its  creation.  Surely 
if  Congress  as  a  means  of  regulating  interstate  commerce  may  create 
corporations  to  carry  it  on,  it  may  endow  them  with  all  such  powers  as 
are  fairly  conducive  to  their  success  as  business  concerns,  judged  by 
the  usual  activities  of  corporations  engaged  in  such  commerce. 

Our  great  corporations  are  now  national  in  their  character,  and  na- 
tional and  international  in  the  scope  of  their  operations.  To  regulate 
their  formation  is  one  of  the  most  direct  and  efficient  means  of  regulat- 
ing their  activities.  For  forty-five  states  to  create  corporations  and  the 
national  government  to  regulate  their  most  important  business  can  not 
fail  to  result  in  inefficiency  and  conflict.  Hitherto  interests  to  be  regu- 
lated have  found  advantage  in  the  dual  form  of  authority.  It  has 
enabled  them  to  assert  whenever  either  authority  attempted  their  regula- 
tion that  the  power  properly  belonged  to  the  other  authority.  We  have 
now  arrived  at  a  state  of  knowledge  and  publicity  which  makes  this  kind 
of  shuffling  impossible.  The  nature  of  the  subject  to  be  regulated  and 


CENTRALIZATION  751 

not  the  shifting  desires  of  the  interests  concerned  must  determine  the 
place  of  authority. 

Our  first  great  conflict  between  the  states  and  the  nation  was  waged 
over  the  subject  of  banking  and  finance.  No  sooner  were  we  started 
under  the  constitution  than  the  need  of  a  national  agency  in  that  field 
was  discovered.  But  the  local  jealousy  of  the  states  prevented  its  estab- 
lishment for  more  than  seventy-five  years.  During  that  period  we  were 
subject  to  all  the  injury  and  confusion  of  wild-cat  banking  under  state 
authority.  Banking  and  finance,  however,  were  not  more  national  at 
that  time  than  commerce  and  industry  have  now  become,  and  the  same 
conflict  is  again  presented  in  this  new  field.  We  can  get  along  with  di- 
vided authority  to-day  on  these  subjects  just  as  we  got  along  with  state 
bank  notes.  This  nation  can  stand  almost  anything.  But  it  is  the  duty 
of  government  in  the  exercise  of  its  power  to  create  conditions  which 
are  not  simply  tolerable,  but  those  which  are  most  conducive  to  the  gen- 
eral welfare.  A  uniform  authority  in  the  field  of  interstate  commerce 
and  industry  will  be  found  as  beneficent  to-day  as  it  was  discovered  to  be 
in  the  field  of  finance  and  banking  as  the  result  of  our  first  economic 
conflict.  The  problem  of  regulating  these  affairs  has  attained  its  present 
magnitude  largely  because  the  federal  government  has  neglected  to 
exercise  its  constitutional  power  over  the  subject  in  the  course  of  its 
development.  Until  the  interstate  commerce  act  was  passed  in  1887  the 
negative  power  of  the  courts  was  the  only  federal  control.  Even  by 
them  till  1886  the  states  were  sustained  in  their  authority  over  interstate 
as  well  as  domestic  rates  of  carriers.  The  truth  is  that  the  national 
government  has  so  long  neglected  its  powers  under  the  commerce  clause 
of  the  constitution  that  now,  when  it  tardily  takes  up  its  duties,  it  is 
charged  by  the  states  with  usurpation. 

The  political  revolution  of  1776  required  the  creation  of  a  central 
political  power  because  it  gave  rise  to  great  political  concerns  that  could 
not  be  provided  for  by  the  several  states.  To-day  as  the  result  of  an 
economic  revolution  quite  as  fundamental  and  far-reaching  there  are 
certain  great  business  interests  that  have  become  national  in  their  char- 
acter and  extent  which  can  not  be  left  to  conflicting  state  authority.  It 
is  as  unwise  to  stand  timidly  shrinking  from  the  exercise  of  economic 
control  now  as  it  would  have  been  a  century  ago  to  hold  back  from  the 
exercise  of  political  power  through  the  fears  of  these  who  dreaded  an 
adequate  national  government.  We  ought  to  look  squarely  at  the  nature 
and  extent  of  our  commerce  and  industry.  Are  they  national  ?  Ought 
they  to  be  regulated  by  one  or  by  fifty  different  sovereignties?  If  in 
their  nature  and  extent  they  are  national,  and  in  justice  to  the  public 
and  the  interests  to  be  regulated  ought  to  be  subject  to  a  single  authority, 
then  we  ought  not  to  hold  back  from  the  exercise  of  the  necessary  power 
simply  because  it  would  add  to  the  activities  of  the  federal  government. 
We  can  not  refrain  from  the  exercise  of  necessary  powers  upon  the  ground 


752  AMERICAN   FEDERAL   GOVERNMENT 

that  the  federal  government  can  not  perform  the  work  wisely  and  effi- 
ciently without  confessing  that  that  government  is  inadequate  to  perform 
the  duties  which  the  nature  of  things  and  the  constitution  alike  devolve 
upon  it.  If  national  industry  and  commerce  ought  not  to  be  subject  to 
the  jealousies  and  local  interests  of  the  several  states,  there  is  no  alter- 
native but  to  devolve  their  regulation  upon  the  federal  government. 
Between  these  two  forms  of  regulation  we  must  make  our  choice.  The 
election  is  not  between  national  regulation  and  some  ideally  perfect 
scheme;  it  lies  between  the  single  authority  of  the  nation  and  the  an- 
archy of  the  different  states  in  combination  with  partial  national  control. 
The  way,  the  duty  and  the  power  are  plain.  Unless  domestic  conditions 
such  as  in  1788  compelled  the  framing  and  adoption  of  the  constitution, 
shall  be  impotent  to  compel  the  exercise  of  those  powers  granted  by  it 
in  order  that  things  which  are  national  in  their  nature  and  extent  may 
be  controlled  by  national  authority,  there  must  be  such  an  extension, 
not  of  constitutional  power,  but  of  the  exercise  of  national  powers  already 
conferred  as  shall  bring  national  commerce  and  industry  under  the 
single  authority  of  the  federal  government. 

One  hundred  years  ago  those  who  opposed  the  adoption  of  the  con- 
stitution made  "Consolidation"  their  cry  of  alarm.  To-day  those  who 
oppose  the  control  by  the  national  government  of  the  business  affairs 
that  have  become  national  raise  the  cry  of  "Centralization."  The  one 
cry  is  as  foolish  as  the  other.  On  both  occasions  the  opposition  is  guilty 
of  that  highest  political  folly  which  consists  in  hanging  to  a  theory  re- 
gardless of  changed  conditions  in  life.  Centralization  has  already  taken 
place  out  there  in  the  world  of  commerce  and  industry.  The  only  ques- 
tion remaining  is,  Shall  the  government  take  cognizance  of  the  fact  ? 


OUR  CHANGING   CONSTITUTION1 
BY  ALFRED  PEARCE  DENNIS 

THE  measure  of  the  interpretation  of  our  Constitution  is  found  in  the 
logic  of  personality,  rather  than  in  the  logic  of  legalism.  The  unfolding 
of  our  national  life  according  to  this  logic  has  involved  three  processes : 
first,  new  meanings  have  been  written  into  the  fundamental  law  by 
judicial  interpretation;  second,  the  unrebuked  exercise  of  doubtful 
powers  by  the  executive  and  legislative  branches  has  extra-legally  en- 
larged the  sphere  of  governmental  action ;  finally,  through  the  spontane- 
ous out-workings  of  our  political  genius,  new  rules,  understandings, 
and  convictions  have  been  introduced  into  our  constitutional  system, 
without  the  intervention  of  direct  governmental  agency. 

1  Atlantic  Monthly,  1905.    Reprinted  in  part,  by  permission.    Copyright. 


CENTRALIZATION  753 


Illustrations  of  the  expansion  of  the  Constitution  by  judicial  interpreta- 
tion may  be  briefly  offered.  Let  it  be  borne  in  mind  that  the  jurisdiction 
of  federal  courts  is,  by  custom,  limited  to  the  determination  of  con- 
crete cases.  Federal  judges  do  not  decide  abstract  questions  or  settle 
disputed  points  of  constitutional  law  unless  such  points  are  raised  in  a 
bona  fide  suit.  It  follows  that  judicial  decision  is  ordinarily  the  second 
term  of  which  legislative  enactment  is  the  first  in  the  interpretative  series. 
A  decision  adverse  to  a  claim  based  upon  the  alleged  unconstitutionality 
of  a  state  or  federal  statute  tends,  of  course,  to  enlarge  the  field  of  legis- 
lative competence,  and  to  widen  the  scope  of  the  written  Constitution. 
Constitutional  development  has  not  followed  the  direct  line  of  strict 
legalism,  nor  the  haphazard  line  of  pure  circumstance,  but  rather  the 
resultant  of  these  forces.  The  logic  of  legalism  and  the  logic  of  facts 
are  never  in  exact  accord.  Congress,  following  out  the  logic  of  legalism, 
has  power  to  declare  war,  and  did  declare  war  against  Spain  in  1898. 
Spain's  sovereignty  in  Porto  Rico  and  the  Philippine  Islands  was  ex- 
tinguished as  a  result  of  the  war.  The  United  States  succeeded  to  the 
sovereignty  thus  relinquished,  and  a  kind  of  political  relationship  with 
the  peoples  of  these  islands  has  been  imposed  upon  us  which  heretofore 
had  not  been  deemed  compatible  with  our  legal  scheme  of  political  ex- 
istence. According  to  the  logic  of  legalism,  it  would  seem  that  the  Taga- 
logs  and  Moros,  since  they  are  subject  to  the  jurisdiction  of  the  United 
States,  are  possessed  of  the  civil  and  political  rights  of  United  States 
citizens.  The  highest  judicial  authority,  however,  following  a  resultant 
between  the  logic  of  legalism  and  the  logic  of  events,  decides  that  the 
islands  ceded  to  us  by  Spain  have  not  been  "incorporated  into  the  United 
States."  Hence  it  is  perfectly  possible  for  territory  to  be  part  of  the 
United  States  in  a  geographical  sense,  without  being  an  integral  part  of 
the  United  States ;  and  that,  in  spite  of  the  constitutional  requirements 
as  to  uniformity  of  legislation,  Congress  can  legislate  pretty  much  as  it 
pleases  for  the  different  territories,  according  to  their  varying  require- 
ments. As  a  result,  then,  of  the  decisions  in  the  so-called  "  insular  cases," 
it  is  judicially  settled  that  the  non-contiguous  territories  of  the  United 
States  are  to  be  governed  in  very  much  the  same  way  as  Great  Britain 
governs  her  vassal  states,  —  the  Crown  Colonies. 

Again,  under  the  commerce  clause  of  the  Constitution,  federal  au- 
thority over  great  commercial  corporations  chartered  by  individual  states 
has  been  exemplified  in  the  application  of  the  Interstate  Commerce  Act. 
The  Anti-Trust  (Sherman)  Act  of  1890  did  not  in  the  view  of  its  framers 
apply  to  railroads  nor  to  reasonable  restraints  of  trade,  but  the  courts 
held  that  it  did  apply  to  railroads  and  to  all  restraints  of  trade,  whether 
reasonable  or  unreasonable.  -The  scope  of  federal  activity  was  further 

48 


754  AMERICAN   FEDERAL   GOVERNMENT 

widened  in  the  " Northern  Securities  Decision,"  according  to  which  the 
mere  ownership  of  stock  in  an  interstate  railroad  brings  the  owner  into 
such  direct  relation  to  interstate  commerce  as  to  subject  him  to  the 
plenary  powers  of  the  federal  government.  This  decision,  coming  upon 
the  heels  of  the  Lottery  case,  marks  an  epoch  in  the  history  of  federal 
centralization  of  power.  Two  important  points  were  decided  in  the 
Lottery  case :  first,  that  the  transmission  of  lottery  tickets  from  one  state 
to  another  is  commerce,  and  therefore  subject  to  federal  regulation; 
second,  that  the  power  to  regulate  commerce  includes  the  power  to 
destroy  it. 

The  inclination  of  the  Congress  and  the  President  to  give  the  Interstate 
Commerce  Commission  power  to  fix  railway  rates,  subject  to  review  by 
the  courts,  or  the  conferring  of  such  power  upon  a  new  court  created  for 
this  purpose,  as  under  the  provision  of  the  Elkins  Bill,  are  epoch-making 
proposals  in  the  exertion  of  federal  power  through  the  elastic  commerce 
clause.  The  creation  of  the  Department  of  Commerce,  with  its  Bureau 
of  Corporations,  marks  another  stage  in  the  progressive  unfolding  of 
federal  power  over  commerce.  Mr.  Garfield,  Commissioner  of  Cor- 
porations, in  his  recent  report,  recommends  that  all  corporations  doing 
an  interstate  business  shall  be  compelled  to  do  so  under  a  federal  license. 
Under  the  proposed  licensing  act  the  national  government  may  impose 
such  conditions  as  to  the  organization,  capitalization,  and  management 
of  corporations  as  it  may  deem  conducive  to  the  public  welfare.  A  prop- 
osition to  take  from  the  states  the  power  to  charter  corporations  engaged 
in  interstate  commerce,  and  to  vest  that  power  in  the  federal  govern- 
ment, is  already  commanding  a  strong  following.  We  hear  little  talk 
about  the  constitutionality  of  these  measures.  It  is  assumed,  and  rightly, 
that  the  courts  would  support  the  government  in  the  exercise  of  these 
powers,  although  they  are  far  beyond  anything  ever  contemplated  by 
the  framers  of  the  Constitution.  The  truth  is,  the  courts  will  not,  in 
interpreting  the  words  of  men  who  lived  in  the  eighteenth  century,  place 
an  injunction  upon  American  progress  in  the  twentieth  century.  While 
the  great  land-owning,  ship-owning,  or  slave-owning  individual  was  the 
most  potent  force  in  our  economic  life  of  a  century  ago,  the  great  corpora- 
tion is  the  most  potent  force  in  our  economic  life  of  to-day.  These  great 
artificial  beings,  the  creatures  of  state  law,  have  outrun  the  control  of 
their  creators.  It  is  inevitable  that  the  nation  should  take  hold  where 
state  control  has  broken  down.  A  hundred  years  ago  the  only  media  of 
interstate  communication  were  coastwise  sailing  vessels  and  the  occasional 
stagecoach  that  lumbered  across  state  lines.  But  to-day  steam  and  elec- 
tricity are  welding  the  states  together,  commercially  and  industrially. 
With  the  destruction  of  the  states  as  industrial  entities  will  follow,  in  the 
fullness  of  time,  their  destruction  as  political  entities.  Historically, 
federalism  is  like  the  grave :  it  takes,  but  it  does  not  give. 


CENTRALIZATION  755 


II 

The  development  of  the  commerce  clause  has  been  cited  as  an  illustra- 
tion of  the  expansion  of  the  Constitution  by  judicial  interpretation. 
Equally  good  illustrations  may  be  found  in  the  interpretation  of  the  war 
power  grant  or  the  grant  of  the  power  to  borrow  money.  We  may  pass, 
however,  from  this  point  to  note  that,  while  the  Supreme  Court  is  legally 
the  ultimate  guardian  of  the  Constitution,  the  legislative  and  executive 
branches  have  frequently  exercised  wide  powers  of  independence  in 
interpretation.  Illustrations  may  be  offered,  in  the  first  place,  of  the 
expansion  of  the  Constitution  by  legislative  action  without  the  actual 
intervention  of  the  courts.  This  may  proceed  by  affirmative  action,  as 
in  the  case  of  the  congressional  statute  prescribing  limited  tenure  of 
office  for  federal  judges  sitting  in  territorial  courts.  Or,  secondly,  the 
Congress,  by  refusing  to  act,  can  virtually  nullify  provisions  of  the  organic 
law.  For  example,  the  Congress  has  never  provided  adequate  machinery 
for  enforcing  the  extradition  clause  of  the  Constitution.  Governor  Durbin, 
of  Indiana,  has  steadily  refused  to  surrender  ex-Governor  Taylor,  indicted 
by  a  Kentucky  court  for  complicity  in  the  Goebel  assassination.  The 
Constitution  provides  that  the  governor  of  the  asylum  state  shall  "deliver 
up  the  fugitive  on  demand,"  but  the  Governor  of  Indiana  pays  no  at- 
tention to  the  demand  of  Governor  Beckham  of  Kentucky,  and  the 
Congress  has  provided  no  means  for  the  execution  of  the  constitutional 
mandate.  It  is  possible,  therefore,  for  a  state  governor  to  set  himself 
up  as  a  trial  court,  and  arbitrarily  refuse  to  surrender  a  fugitive  from 
justice.  Again,  the  provisions  of  the  fourteenth  amendment,  penalizing 
by  a  proportional  reduction  in  representation  any  state  which  excludes 
from  the  suffrage  adult  male  citizens,  is  to-day  as  worthless  as  a  counter- 
feit note  drawn  on  a  broken  bank.  The  constitutional  provision  appears 
to  be  automatic,  but  no  legal  provision  is  self-executing  unless  the  gov- 
ernment provides  the  means.  Again  and  again  the  Congress  has  re- 
fused to  take  affirmative  action  in  support  of  the  constitutional  mandate. 
More  than  this,  the  fifteenth  amendment  is  cynically  nullified  in  its 
spirit,  if  not  in  its  letter,  by  the  constitutions  of  the  Southern  states.  The 
Supreme  Court  recently  refused  relief  to  an  Alabama  negro  seeking  the 
suffrage  denied  to  him  by  the  constitution  of  that  state,  on  the  ground 
that  the  court  lacked  jurisdiction  over  the  case  as  presented.  Thus  it 
happens  that,  when  the  disfranchised  negro  petitions  the  Congress  for 
relief,  he  is  told  to  go  to  the  courts,  because  a  legal  question  is  involved ; 
when  he  invokes  the  aid  of  the  courts,  he  is  told  to  go  to  the  Congress, 
because  a  political  question  is  involved.  The  truth  is,  the  Congress  and 
the  courts  recognize  that  the  bitter  experience  of  an  entire  generation 
stamps  the  fifteenth  amendment  as  a  cruel  error  of  national  judgment. 
Next  to  secession,  it  was  perhaps  the  greatest  political  mistake  of  our 


756  AMERICAN   FEDERAL   GOVERNMENT 

history.  The  South  has  long  known  it;  the  North  is  fast  learning  it. 
American  common  sense,  as  represented  in  legislative  and  judicial 
councils,  goes  to  the  root  of  the  matter,  and,  by  acquiescence  in  the 
nullification  of  the  written  word,  constitutes  an  unwritten  amendment 
to  the  organic  law. 

Ill 

In  the  third  place,  important  changes  have  been  made  in  our  constitu- 
tional fabric  by  executive  interpretation.  It  is  of  interest  to  recall  that 
Jefferson,  Jackson,  Tyler,  Buchanan,  and  Lincoln  successively  declared 
that  they  did  not  regard  as  binding  and  final  an  interpretation  of  the 
Constitution  by  the  United  States  Supreme  Court.  Jefferson  was  not 
scrupulous  in  performing  a  legal  duty  as  defined  by  the  Supreme  Court 
in  the  celebrated  Marbury  v.  Madison  decision.  Jefferson  was  also  re- 
sponsible for  the  Embargo  Act  and  for  the  Louisiana  Purchase,  — 
measures  of  doubtful  constitutional  standing.  Jackson  vetoed  a  bill  for 
rechartering  the  United  States  Bank,  on  the  ground  that  it  was  uncon- 
stitutional, although  the  Supreme  Court  had  previously  decided  to  the 
contrary.  President  Tyler,  later  on,  endorsed  Jackson's  position  in  his 
veto  of  a  new  Bank  Bill.  Mr.  Buchanan,  then  a  member  of  the  House, 
voted  against  the  Bank  Bill,  declaring  the  legislator  to  be  as  independent 
of  the  court  as  the  executive.  Lincoln  impugned  the  constitutionality 
of  the  Dred  Scott  decision,  and,  had  he  been  President  in  1858,  it  is 
doubtful  whether  he  would  have  employed  the  executive  arm  of  the 
Government  to  enforce  the  decision  of  the  Court.  In  the  manumission 
of  the  slaves,  and  the  suspension  of  the  writ  of  habeas  corpus,  he  made 
no  appeal  to  constitutional  sanction.  Legal  limitations  were  brushed 
aside  in  order  that  the  life  of  the  nation  might  be  preserved. 

Not  a  few  of  the  discretionary  acts  of  the  present  chief  executive  have 
fallen  within  the  shadowy  realm  of  extra-legal  powers.  The  following 
so-called  executive  "usurpations"  may  be  noticed:  — 

1.  Ad  interim  executive  appointments,  the  validity  of  which  rested 
upon  a  "constructive"  recess  of  the  Congress.    The  metaphysical  subtle- 
ties involved  in  an  appeal  to  the  doctrine  of  infinitesimals  baffled  the 
simple  intelligence  of  the  plain  man,  and  the  "constructive"  recess  has 
been  challenged  as  an  unwarranted  exercise  of  executive  authority. 

2.  Executive  order  number  78,  constituting  the  age  of  sixty-two  a 
prima  facie  evidence  of  disability  in  the  adjudication  of  pension  claims. 
This  act  has  been  widely  viewed  in  the  light  of  the  appropriation  of 
public  revenues  by  executive  decree,  rather  than  by  act  of  the  people's 
representatives  in  the  Congress. 

3.  Mr.  Whitelaw  Reid's  appointment  as  special  embassador  to  attend 
the  coronation  of  his  Majesty,  King  Edward  VII,  without  the  advice  or 
consent  of  the  Senate. 

4.  The  executive  order  excluding  a  great  newspaper  from  the  news  of 


CENTRALIZATION  .  757 

the  departments  because  that  paper  had  published  a  silly  canard  about 
the  President's  children. 

5.  Intervention  in  the  Panama  affair,  amounting,  in  the  view  of  many 
thinking  men,  to  a  usurpation  of  the  war  power  vested  by  the  Constitu- 
tion exclusively  in  the  legislative  branch. 

6.  The  interposition  of  the  President  in  the  Pennsylvania  coal  strike 
through  the  creation  of  a  commission  to  arbitrate  a  labor  dispute. 

7.  The  Executive  " Agreement"  with  the  Republic  of  San  Domingo. 

8.  The  creation  by  executive  act  of  the  office  of  Chief  Engineer  of  the 
Irrigation  and  Reclamation  Service,  without  the  authorization  of  the 
Congress. 

The  exercise  of  these  and  other  doubtful  powers  by  President  Roose- 
velt received  no  rebuke  from  the  courts.  From  no  responsible  source 
came  any  suggestion  of  impeachment.  Finally,  the  President  received 
overwhelming  vindication  by  the  people  at  the  polls.  Hence  the  so- 
called  usurpations  are  not  to  be  regarded  as  usurpations  at  all.  It  all 
goes  to  show  that  executive  and  legislative  officials  (though  this  is  true 
of  the  latter  in  less  degree)  are  bound  to  the  extent  of  their  conscience 
and  their  political  responsibility.  As  Walter  Bagehot  remarks,  in  one 
of  the  profoundest  of  political  aphorisms:  " Success  in  government  is 
due  far  more  to  the  civil  instincts  and  capacity  of  our  race,  than  to  any 
theoretical  harmony  or  perfection  of  the  rules  and  formulae  of  govern- 
mental conduct." 

IV 

Finally,  radical  changes,  unrecognized  as  yet  in  the  written  law,  but 
embodied  in  what  may  be  called  the  organic  "common  law,"  have  been 
wrought  in  the  Constitution  by  custom,  precedent,  and  the  silent  pressure 
of  public  opinion.  The  unfolding  political  consciousness  of  the  nation 
reveals  itself  in  spontaneous  processes  of  growth,  which  without  legal 
recognition  are  gradually  transforming  the  body  of  written  law.  Na- 
ture's live  growths  rive  even  the  rocks.  Young  and  vigorous  institutional 
plants  thrust  their  roots  into  the  crevices  of  crumbling  constitutional 
walls,  and  at  last  overthrow  them. 

Our  Constitution  provides  a  theoretically  perfect  plan  for  the  indirect 
election  of  president  and  vice-president.  The  demand  of  the  popular 
consciousness  for  a  direct  choice  has  nullified  this  provision.  Presidential 
electors  have  become  mere  pawns.  They  register,  they  do  not  elect. 
They  must  take  what  has  been  proposed  at  a  convention  and  ratified  by 
the  people.  Furthermore,  while  as  late  as  1824  presidential  electors  in 
the  majority  of  states  were  chosen  by  the  legislatures  thereof,  they  are 
now,  in  all  cases,  chosen  on  a  general  ticket  by  a  direct  vote  of  the  people. 
This  practice,  with  rare  exceptions,  —  as,  for  example,  Maryland's  split 
electoral  vote  in  the  last  general  election,  —  throws  the  entire  weight 
of  each  state  for  the  candidate  whose  list  of  electors  happens  to  be  carried. 


758  AMERICAN   FEDERAL   GOVERNMENT 

The  device  of  indirect  election  has  thus  gone  to  the  constitutional  scrap- 
heap.  The  growth  of  democratic  sentiment  has  not  only  reduced  the 
choice  to  a  direct  popular  basis,  but  has  hinged  the  decision  on  a  vote 
by  states. 

In  like  manner,  the  growth  of  democratic  sentiment  is  demanding  the 
election  of  United  States  senators  by  direct  popular  vote,  and  we  may 
look  to  see  a  progressive  nullification  of  the  legally  prescribed  plan  of 
indirect  election.  The  demand  for  formal  amendment  breaks  fruitlessly 
against  the  determined  opposition  of  the  Senate  itself,  but  the  desired 
end  is  being  sought  through  extra-legal  channels.  As,  for  example,  in 
South  Carolina,  where  a  senatorial  nomination  in  a  primary  election  is 
considered  binding  upon  the  formal  action  of  the  state  legislature.  Under 
such  a  condition  the  legislature,  like  the  electoral  college,  no  longer  elects, 
but  merely  ratifies  the  popular  choice.  In  other  states  the  legislature  is 
not  infrequently  called  upon  to  ratify  a  selection  made  by  a  knot  of  party 
bosses,  in  some  back-parlor  conference,  weeks  before  the  legislature  con- 
venes. Mr.  Depew  affably  receives  congratulations  upon  his  return  to 
the  Senate  three  weeks  before  the  convening  of  the  legislative  caucus 
nominally  charged  with  the  function  of  naming  a  junior  senator  for  the 
state  of  New  York.  The  old  Frankish  Mayors  of  the  Palace  were  ac- 
customed to  pay  elaborate  homage  to  the  kings  of  the  Merovingian 
dynasty.  Yet  the  king  was  a  mere  trapping  of  state,  a  glittering  puppet, 
and  the  will  of  the  enthroned  monarch  actually  yielded  in  all  important 
matters  to  the  will  of  the  uncrowned  vassal.  Thus  it  is  that  the  body 
vested  with  independent  choice  may  be  reduced  in  great  states,  such  as 
Pennsylvania,  New  York,  and  Indiana,  to  a  mere  ratification  assem- 
blage. Of  the  three  branches  of  the  government  only  one-sixth,  in  the 
beginning,  was  popularly  elected;  to-day  one-half  is  popularly  elected, 
and  the  sappers  and  miners  of  Democratic  tendency  are  already  beneath 
the  foundations  of  another  sixth,  the  Senate. 

Again,  the  great  national  nominating  conventions  are  absolutely  un- 
known to  the  federal  Constitution  or  statutes.  The  National  Conven- 
tion, made  up  of  a  thousand  delegates,  and  as  many  alternates,  elected 
by  all  sorts  of  process,  not  knowing  one  another,  bound  by  no  oath  of 
office,  is  an  absolute  and  final  judge  of  its  own  procedure  and  its  own 
results.  Such  a  body,  as  in  the  case  of  the  last  Democratic  Convention, 
passes  through  a  four-day  delirium  of  intrigue,  oratory,  and  uproar, 
proclaims  its  creed  and  its  nominees,  and  with  adjournment  goes  down 
to  a  death  that  knows  no  resurrection.  The  conduct  of  public  affairs, 
even  when  not  veiled  from  the  public  eye,  is  humdrum  enough.  A  con- 
vention, with  its  brass  bands,  its  mad  cheering,  its  high-keyed  oratory, 
its  thousands  of  spectators,  and  its  frenzied  enthusiasm,  furnishes  the 
most  stirring,  dramatic,  and  grandiose  exemplification  of  public  action 
which  the  political  processes  of  this  country  afford.  Yet  of  the  conduct, 
function,  and  place  of  the  convention  in  our  political  system  the  foreign 


CENTRALIZATION  759 

student  would  gain  not  a  hint  nor  suggestion  from  the  entire  body  of 
our  written  organic  law  with  all  the  commentaries  thereon. 

Equally  without  recognition  in  the  organic  law  is  the  spoils  system, 
the  great  foundation  upon  which  party  service  rests.  The  practice  of 
the  executive  to-day  in  appointments  and  removals  is,  barring  the  limi- 
tations of  the  Civil  Service  Law,  substantially  what  President  Jackson 
made  it  seventy  years  ago  by  the  removal,  during  the  first  year  of  his 
administration,  of  two  thousand  placemen  for  political  reasons.  In 
recent  years  there  has  been  a  practical  transfer  of  the  appointing  power  in 
the  case  of  postmasters  from  the  president  to  members  of  the  House. 
The  appointing  power  is,  of  course,  legally  shared  by  the  Senate.  The 
president  must  take  somebody's  recommendation,  and  the  custom  of 
allowing  congressmen  the  right  to  name  postmasters  implies  a  dis- 
position on  the  part  of  senators  to  "go  halves"  on  the  spoils  of  office. 
Washington  was  called  upon  to  appoint  but  seventy-five  postmasters; 
this  number  has  since  increased  a  thousandfold,  and  it  is  absurd  to 
suppose  that  any  mortal  can,  on  his  own  judgment  and  intuition,  pick 
out  suitable  men  for  all  these  places.  The  president,  in  the  majority  of 
cases,  can  do  no  more  than  ratify  an  antecedent  choice.  In  the  cause 
celebre  of  the  recent  Haverhill  appointment,  the  President  asserted  a 
dormant  prerogative  and  rejected  the  candidate  for  postmaster  named 
by  the  local  representative,  Mr.  Gardner.  But  even  this  exercise  of 
so-called  independence  reduces  to  the  acceptance  of  another's  nominee. 
In  this  case  Attorney- General  Moody  was  given  the  right  of  way  in  nomi- 
nating an  official  for  his  home  city.  The  outpourings  of  Mr.  Gardner 
on  the  occasion  are  of  interest.  He  felt  that  he  had  been  beaten  by  a 
series  of  moves  not  allowed  under  the  rules  of  the  game.  He  relied  upon 
his  "rights,"  and  speaks  of  the  "unwritten  law"  which  vests  in  congress- 
men the  right  to  name  the  postmasters  in  their  respective  districts.  The 
representative  from  the  sixth  Massachusetts  district  received  a  stinging 
rebuke  for  bluntly  insisting  upon  the  observance  of  a  custom  which  is 
tacitly  recognized.  In  this  respect  he  reminds  one  of  Helvetius,  who 
put  into  print  in  his  book,  U  Esprit,  theories  which  contemporary  thinkers 
had  been  content  to  advocate  only  in  private.  "They  make  so  much 
ado  about  Helvetius,"  said  Madame  du  Deffand,  "because  he  has 
revealed  everybody's  secret."  There  is  no  reason  other  than  the  letter 
of  the  Constitution  why  postmasters  should  not  be  named  by  legislatively 
determined  post-office  districts,  just  as  congressmen  are  chosen  from 
legislatively  defined  congressional  districts.  The  appointment  of  a 
postmaster  who  is  persona  non  grata  to  the  locality  immediately  con- 
cerned, as  in  the  Indianola  case,  is  foreign  to  our  political  habit,  and  one 
may  assume  that  the  attitude  of  the  executive  in  this  matter  will  tend 
even  more  to  become  one  of  mere  acquiescence  in  a  predetermined 
choice. 

Again,  one  discovers  no  statutory  basis  for  the  custom  which  limits  the 


760  AMERICAN   FEDERAL   GOVERNMENT 

choice  of  a  congressman  to  the  district  in  which  he  resides.  American 
local  pride  rejects  the  notion  that  one's  district  can  not  be  suitably  rep- 
resented by  a  local  product;  then,  too,  each  district  feels  itself  entitled 
to  special  legislative  favors,  and  bases  its  hopes  of  realization  upon  a 
representative's  familiarity  with  home  needs,  rather  than  upon  the  quality 
of  his  influence  in  legislative  halls.  The  idea  that  Mr.  Bryce,  a  Londoner, 
may  acceptably  represent  the  constituency  of  Aberdeen  in  the  British 
House  of  Commons,  is  quite  foreign  to  the  average  American's  notion 
of  representative  government.  This  custom  of  limiting  the  choice  of  a 
congressman  to  the  district  in  which  he  resides  has  entailed  a  distinct 
loss  in  the  character  of  our  representative  body.  An  important  state, 
and  the  nation,  as  well,  were  deprived  of  the  fine  legislative  capacities 
of  the  late  William  L.  Wilson,  because  a  passing  party  upheaval  changed 
the  political  complexion  of  the  particular  district  in  which  the  distin- 
guished member  from  West  Virginia  happened  to  reside. 

Without  any  sanction  of  positive  law  is  the  rule  which  declares  the 
President  ineligible  for  a  third  term,  and  the  senatorial  rule  of  confirm- 
ing, without  question,  the  President's  cabinet  appointments. 

Again,  both  legislative  houses  are  bound  by  a  mass  of  rules  which 
possess  no  legal  sanction  whatever.  Invoking  the  rule  of  senatorial 
courtesy,  Senator  Hill  was  able,  single-handed,  and  for  purely  personal 
and  factional  reasons,  to  defeat  President  Cleveland's  excellent  nomi- 
nation of  William  B.  Hornblower  to  the  bench  of  the  United  States 
Supreme  Court. 

Unlimited  debate  in  the  Senate  may  now  be  regarded  as  an  extra- 
legal  feature  of  our  Constitution.  This  unwritten  rule  is  defined  by 
failures  repeated  through  a  hundred  years  to  secure  the  adoption  of  a 
closure  rule.  Limitation  of  debate  has  been  found  necessary  in  the 
parliamentary  bodies  of  England,  France,  Germany,  Denmark,  Bel- 
gium, Italy,  Switzerland,  and  Canada.  The  United  States  Senate  alone 
of  all  the  great  deliberative,  law-making  bodies  honors  no  demand  for 
the  "previous  question."  The  populistic  outpourings  of  the  Aliens, 
Peffers,  and  Pettigrews,  constitute  a  heavy  price  to  pay  for  absolute 
freedom  of  debate,  but  perhaps  not  too  high  a  price  when  one  reflects 
that  Senator  Carter,  invoking  the  equal  protection  of  the  unwritten  law, 
held  the  floor  of  the  Senate  for  ten  hours  during  the  last  legislative  day 
of  the  fifty-sixth  Congress,  and  thus  killed  the  River  and  Harbor  Bill. 
By  the  failure  of  the  bill,  a  saving  of  fifty  million  dollars  was  accom- 
plished, and,  as  Senator  Carter  phrased  it,  "no  injury  was  done  to  any 
living  human  being  anywhere."  In  like  manner,  through  the  inflexi- 
bility of  this  unwritten  rule,  the  whole  fifty-seventh  Congress,  in  its 
closing  hours,  was  whiplashed  by  Senator  Tillman  over  an  old  war 
claim  of  South  Carolina's  for  forty-seven  thousand  dollars,  which  an 
auditor  of  the  Treasury  had  appraised  at  thirty-four  cents.  Chairman 
Cannon  of  the  Appropriations  Committee  denounced  this  transaction 


CENTRALIZATION  761 

on  the  floor  of  the  House  in  memorable  words:  "In  another  body," 
said  he,  "an  individual  member  can  rise  in  his  place  and  talk  for  hours. 
.  .  .  Your  conferees  had  the  alternative  of  submitting  to  legislative 
blackmail  at  the  demand,  in  my  opinion,  of  one  individual,  or  of  letting 
these  great  money  bills  fail.  ...  In  my  opinion,  another  body  must 
change  its  methods  of  procedure,  or  our  body,  backed  up  by  the  people, 
will  compel  the  change,  else  this  body,  close  to  the  people,  shall  become 
a  mere  tenderer,  a  mere  bender  of  the  pregnant  hinges  of  the  knee,  to 
submit  to  what  one  member  of  another  body  may  demand  of  this  body, 
as  a  price  for  legislation." 

Another  extra-constitutional  rule,  which  will  undoubtedly  prevail  in 
future  cases  of  ad  interim  gubernatorial  appointments  to  Senate  vacan- 
cies, was  recently  established  in  the  Quay  case.  The  Senate,  by  majority 
of  one,  decided  that  Mr.  Quay  was  not  entitled  to  his  seat  on  a  certifi- 
cate of  appointment  issued  by  Governor  Stone  after  the  legislature  of 
Pennsylvania  had  adjourned  without  making  a  choice.  That  the  gov- 
ernor has  no  power  to  appoint  in  case  the  legislature  fails  to  elect  is  a 
rule  which  may  now  be  described  as  a  principle  of  Federal  "Common 
Law." 

In  like  manner  a  binding  customary  rule  provides  that  all  appropria- 
tion bills  shall  originate  in  the  House,  although  the  written  Constitution 
is  silent  upon  the  subject. 

Equally  without  legal  sanction  is  the  Congressional  Caucus,  which 
silences  the  opposition  of  party  dissenters,  and  secures  unity  of  party 
action;  or  the  unwritten  rule  of  the  Senate  that  seniority  shall  govern 
in  the  make-up  of  committees.  Under  this  latter  custom  the  most  dis- 
tinguished lawyer  in  the  country  probably  could  not  reach  the  head  of 
the  Judiciary  Committee  until  all  party  members  who  preceded  him  on 
the  committee  had  retired  from  the  Senate. 

Finally  we  search  the  Constitution  and  statutes  in  vain  to  discover 
legal  sanction  for  the  tremendous  legislative  and  political  power  now 
exercised  by  the  Speaker  of  the  House.  The  precedent  which  had  the 
greatest  influence  with  the  men  who  sat  with  the  Philadelphia  Conven- 
tion was  that  of  the  Colonial  Speaker.  He,  like  the  Speaker  of  the 
House  of  Commons,  was  nothing  more  than  an  impartial  moderator. 
The  imperfect  organization  of  the  House,  the  rise  of  the  party  system, 
the  vast  increase  in  the  amount  of  congressional  business,  have  united 
to  transform  the  speakership  into  a  great  political  office.  The  central, 
vital  weakness  in  our  legislative  system  is  found  in  its  lack  of  unity  and 
coherence.  By  processes  of  slow  and  inappreciable  adaptation,  our 
political  genius  applies  empirical  remedies  to  our  constitutional  defects, 
just  as  nature  herself,  by  silent  and  inscrutable  agency,  applies  to  a 
wound  or  sore  her  processes  of  healing.  Our  income  is  raised  by  one 
set  of  men,  our  expenditures  are  applied  by  another.  Government  by 
standing  committees  means  government  by  fifty-five  jarring,  petty  leg- 


762  AMERICAN   FEDERAL   GOVERNMENT 

islatures.  A  unifying  influence  in  legislation  is  demanded,  and  partial 
coordination  is  found  in  the  paramount  political  and  legislative  control 
now  exercised  by  the  Speaker.  One  admits  that  his  power,  through 
recognition,  seems  tyrannical,  that  his  authority  to  appoint  all  com- 
mittees seems  arbitrary,  and  that  his  control  over  the  order  of  business, 
as  Chairman  of  the  Rules  Committee,  seems  dictatorial.  But  what 
.  then  !  The  House  acquiesces  in  "one  man  power,"  and  there  is  a  reason 
for  it.  Macaulay  observes  that  an  army  can  not  be  led  by  a  debating 
club ;  neither  can  the  House,  which,  without  rigid  discipline,  would  de- 
generate into  a  debating  club,  lead  itself.  Individuals,  for  the  sake  of 
order  and  efficiency,  must  under  military  discipline  surrender  their 
capricious,  conflicting,  casual  wills  to  the  will  of  a  common  superior, 
just  as,  in  the  thought  of  Hobbes,  the  warring  human  atoms  in  "a  state 
of  nature"  confer,  for  the  sake  of  peace  and  order,  all  their  powers  upon 
a  common  coercive  superior,  called  by  Hobbes  the  great  Leviathan,  or 
mortal  God.  The  British  House  of  Commons  is  able  to  govern  because 
obedience  to  leaders  is  of  its  essence.  It  lives  in  a  state  of  perpetual  po- 
tential choice  of  leaders,  but  leaders  there  will  always  be,  and  these  leaders 
must  be  obeyed.  The  penalty  of  disobedience  is  legislative  impotence. 
In  a  sense  the  House  of  Commons  does  not  rule;  it  merely  elects  the 
nation's  rulers.  This,  in  larger  measure  than  is  generally  suspected,  is 
true  of  the  House  of  Representatives.  The  three  hundred  and  eighty- 
six  members  who  may  occupy  the  floor  constitute  the  House  on  parade. 
The  House  at  work  is  a  disintegrate  body,  grinding  away  behind  the 
closed  doors  of  fifty  or  more  committee  rooms.  The  House  in  session 
is  no  longer  the  real  legislative  power,  but  rather  the  maker  of  the  real 
legislative  power,  —  the  Speaker  and  his  appointees,  the  chairmen  of  the 
great  standing  committees.  Instead  of  a  responsible  ministry,  as  under 
the  British  system,  the  House  appoints  a  hierarchy,  which  in  the  present 
state  of  evolution  consists  of  four  members,  three  a  constant,  and  one  a 
variable,  —  the  constant  being  the  Speaker  and  his  two  party  associates 
of  the  Rules  Committee,  the  variable  being  the  chairman  of  the  com- 
mittee having  jurisdiction  of  the  measure  which  has  been  given  right  of 
way  by  the  Rules  Committee.  While  the  House  has  the  constitutional 
right  to  determine  its  own  rules  of  procedure,  it  can  not  be  maintained 
that  the  Fathers  intended  to  grant  a  power  which  should  deprive  the 
popular  legislative  branch  of  its  deliberate  functions,  or  impair  the  free 
representative  character  of  the  body  itself.  The  transformation  of  the 
popular  branch  has  proceeded  in  obedience  to  the  laws  of  our  political 
evolution.  This  development  has  been  largely  along  extra-constitutional 
lines,  and,  in  the  opinion  of  the  writer,  changes  will  continue  to  work 
themselves  out  along  the  line  of  coordinating,  with  the  legislative  power 
of  the  rulers  of  the  House,  a  reciprocal  measure  of  defined  political 
responsibility. 

Who,  ten  years  ago,  could  have  divined  the  mighty  changes  wrought 


CENTRALIZATION  763 

in  our  institutional  fabric  within  the  narrow  limits  of  a  single  decade? 
To-day  the  thoughtful  man  turns  to  the  future  and  wonders  what  is 
coming  to  the  Republic.  One  notes  the  drift  toward  strong  government 
and  the  growing  disposition  to  appeal  to  Washington  for  the  correction 
of  all  manner  of  public  ills.  The  conclusion  is  borne  in  upon  us  on  every 
side  that  out  of  the  federal  state  is  rising  the  Unitarian  state,  just  as  out 
of  the  federation,  —  a  band  of  states,  —  rose  the  Federal  Republic,  — 
a  banded  state. 

The  Constitution  can  be  treated  no  longer  as  a  written  instrument 
defining  the  measure  of  American  destiny,  but  rather  as  the  sum  of  the 
political  habits  and  convictions  of  the  nation.  This  is  not  the  place  to 
deplore  nor  to  approve.  What  is  written,  is  written.  Litera  scripta 
manet.  The  written  word  does  not  change,  but  the  consciousness  of  a 
progressive  society,  like  that  of  the  human  organism,  is  always  changing. 
Herein  is  a  relation  between  a  constant  and  a  variable,  —  fixed  law  and 
changing  life.  Life  can  not  be  expressed  in  a  formula  or  reduced  to  a 
syllogism.  In  a  tempest  the  sea  anchor,  fixed  in  nothing  more  stable 
than  the  watery  element,  holds  the  ship  to  windward  when  otherwise  the 
craft  might  be  blown  helplessly  from  her  9ourse.  Our  political  devel- 
opment has  followed  the  course  laid  down  by  the  rigid,  written  consti- 
tution, but  the  anchor  of  limitations  is  fixed  in  an  element  which  is 
itself  shifting  and  unstable.  The  old  conflict  between  the  unyielding  law 
and  the  living  organism  has  resulted,  as  it  must  always  result  in  any 
expanding  life,  in  a  victory  for  the  organism.  For  the  letter  killeth,  but 
the  spirit  giveth  life. 


SPEECH   OF   REPRESENTATIVE   DE   ARMOND   FOR   A 
CONSTITUTIONAL   CONVENTION  1 

MR.  DE  ARMOND  said: 

Mr.  Chairman :  Listening  to  the  remarks  of  the  gentleman  from  New 
York  (Mr.  Perkins)  upon  the  subject  of  an  inheritance  tax,  my  atten- 
tion is  directed  also  to  the  matter  of  an  income  tax,  and  to  some  things 
that  are  involved  in  the  consideration  of  the  two  questions.  All  know 
that  as  matters  now  stand,  unless  through  change  in  the  personnel  of 
the  Supreme  Court,  leading  to  a  change  in  its  views  and  decision  upon 
this  subject,  an  income  tax  can  not  be  imposed  and  sustained.  There 
are  a  great  many  people  of  the  nation,  and  I  am  one  of  them,  who  be- 
lieve that  a  graduated  tax  upon  incomes  is  a  most  righteous  and  most 
desirable  tax.  I  quite  agree  with  the  gentleman  from  New  York  (Mr. 
Perkins),  and  with  those  taking  a  similar  veiw,  that  an  inheritance  tax 
also  is  most  desirable,  and  I  hope  the  time  is  not  far  distant  when  we 
may  have  it  established  in  this  country. 

1  Congr.  Record,  Dec.  u,  1906. 


764  AMERICAN  FEDERAL   GOVERNMENT 

In  view  of  the  fact,  however,  that  an  income  tax  is  a  mere  experiment 
—  not  as  to  the  qualities  of  the  tax  or  its  beneficial  features,  but  as  to 
the  opinion  of  the  court  concerning  its  constitutionality  —  and  inas- 
much also  as  there  are  a  good  many  other  things  that  in  the  estimation 
of  a  good  many  people  in  this  country  would  be  wholesome  as  matters 
of  legislation,  which  perhaps  are  not  constitutional  at  this  time,  efforts 
are  made  from  time  to  time  to  amend  the  Constitution,  and  such  efforts 
will  be  continued  almost  indefinitely.  When  we  reflect  that  no  amend- 
ments to  that  great  instrument  have  been  made  in  more  than  a  hundred 
years,  excepting  only  the  three  which  grew  out  of  the  civil  war,  and  that 
excepting  these  civil  war  amendments  and  the  one  in  relation  to  the 
electoral  college,  growing  out  of  the  contest  between  Jefferson  and  Burr 
for  the  Presidency  more  than  a  century  ago,  all  the  other  amendments 
may  be  regarded  as  practically  part  of  the  original  Constitution,  we  may 
safely  conclude  that  the  Constitution  will  not  be  amended  in  our  day 
through  the  submission  of  amendments  by  the  Congress. 

The  Constitution  itself,  however,  provides  another  way  of  securing 
amendments  to  that  instrument  —  that  is,  by  the  action  in  the  first 
instance  of  the  several  States  themselves  (Article  V). 

There  has  been  a  great  deal  of  agitation  in  the  country  from  time  to 
time,  and  there  is  perhaps  a  good  deal  now,  over  the  proposed  amend- 
ment of  the  Constitution  in  a  good  many  important  particulars.  With 
some  of  this  agitation  and  some  of  these  movements  I  am  in  sympathy; 
with  others  I  am  not.  A  great  many  very  good  people,  entitled  to  their 
views  and  entitled  to  a  hearing  upon  them,  are  of  the  opinion  that  in  a 
good  many  important  particulars  the  Constitution  ought  to  be  amended. 
For  instance,  there  are  those  who  believe  that  it  ought  to  be  amended 
so  as  to  provide  for  female  suffrage.  Others  would  have  a  marriage  and 
divorce  amendment.  Some  believe  it  should  be  amended  with  reference 
to  the  liquor  traffic,  or  by  way  of  prohibition  of  the  liquor  traffic.  Many 
believe  there  ought  to  be  a  constitutional  provision  for  the  election  of 
United  States  Senators  by  direct  vote  of  the  people.  There  are  those 
who  are  of  the  opinion  that  fhe  President  and  Vice-President  should 
also  be  chosen  by  a  direct  vote.  Some  believe  the  Presidential  term 
ought  to  be  six  years  instead  of  four  years,  and  that  the  President  ought 
to  be  ineligible  for  reelection  as  his  own  successor.  Some  people,  par- 
ticularly in  the  latitude  of  Washington,  believe  it  is  vastly  important  to 
have  the  Presidential  term  begin  later  in  the  season,  so  that  inaugura- 
tion day  may  fall  at  a  time  when  the  weather  is  more  agreeable  and  fit 
for  a  pageant  than  it  is  likely  to  be  about  the  4th  day  of  March.  A 
great  many  people  believe  that  Congress  ought  to  be  convened  shortly 
after  the  election,  instead  of  thirteen  months  after  the  Members  of  the 
House  of  Representatives  are  chosen.  There  are  some  who  believe  that 
provision  ought  to  be  made  in  the  Constitution  whereby  the  Govern- 
ment, under  suitable  regulations  of  law,  might  insure  the  lives  of  citizens 


CENTRALIZATION  765 

of  this  great  Republic.  I  am  one  of  those  who  entertain  that  opinion. 
Life  insurance  by  the  Government  could  be  made  both  safe  and  profit- 
able ;  and  what  a  boon  to  the  people  to  get  insurance  at  what  it  is  worth  ! 
There  are  people  who  believe  that  by  an  amendment  to  the  Constitution 
greater  power,  better-defined  power,  power  that  may  be  more  easily 
exercised  and  more  effectively  employed,  might  be  supplied  for  dealing 
with  great  trusts  and  other  mighty  corporate  agencies  of  the  land.  I 
need  not  take  the  time  of  the  House  in  enumerating  the  various  matters 
concerning  which  amendments  have  been  and  are  persistently  urged  and 
earnestly  desired.  I  mention  some  of  them  merely  as  preliminary  to  the 
consideration  of  whether  or  not  it  might  be  advisable  for  the  people  of 
this  country,  by  action  of  their  various  State  legislatures,  to  call  upon 
Congress  to  make  provision  for  a  constitutional  convention,  in  which  all 
the  plans  and  schemes  of  amendment  might  be  presented.  Such  a  con- 
vention surely  would  be  composed,  in  part  at  least,  of  the  ablest  men 
in  the  land.  It  would  be  a  very  great  body  of  American  statesmen  and 
citizens.  I  believe  the  very  fact  of  the  assembling  of  such  a  convention 
—  I  believe,  indeed,  the  preliminary  discussions  leading  up  to  it  or 
designed  to  bring  it  about  —  would  be  productive  of  much  good  in 
legislation  in  Congress  and  in  the  several  State  legislatures.  The  con- 
vention, I  presume,  would  submit  some  amendments  for  the  ratification 
of  the  people,  and  State  conventions  might  follow,  for  considering  and 
determining  the  adoption  or  rejection  of  the  amendments  submitted. 

Now,  I  am  not  one  of  those  who  believe  that  the  old  Constitution  is 
worn  out,  or  that  the  ingenuity  and  statesmanship  and  patriotism  of 
to-day  would  be  likely  to  supply  something  which  in  its  fundamental 
principles  would  be  any  improvement  upon,  or  even  as  good  as,  that 
old  instrument ;  but  I  am  one  of  those  who  do  believe  that  a  constitution 
made  more  than  a  hundred  years  ago,  when  conditions  were  vastly  dif- 
ferent, when  corporations  were  in  their  infancy,  when  our  population 
was  sparse,  when  wealth  was  not  concentrated,  when  great  agencies  in 
government  were  not  employed  as  they  are  employed  now,  before  the 
day  of  the  telegraph  and  telephone  and  the  many  triumphs  of  electricity, 
before  many  of  the  mighty  inventions  of  to-day  and  yesterday  were 
dreamed  of;  that  a  constitution  made  then  may  lack  something  now. 
I  believe  the  makers  did  not  embody  in  that  instrument  of  matchless 
worth,  our  Constitution,  all  that  might  be  or  is  now  sufficient  or  desir- 
able for  present  needs  or  to  equip  the  people  to  meet  the  rapidly  grow- 
ing needs  of  the  future  of  a  great  country.  I  believe  a  convention  of 
American  citizens,  assembled  for  the  purpose  of  considering  various 
propositions  to  amend  that  Constitution,  would  be  likely  to  submit  some 
wholesome  and  timely  amendments,  perhaps  a  good  many,  but  some, 
at  least,  which  would  meet  the  approval  of  the  American  people,  and, 
by  their  sovereign  will,  be  made  part  of  the  Constitution. 

I  believe  there  is  enough  of  wisdom  and  patriotism  and  justice  in  the 


766  AMERICAN   FEDERAL   GOVERNMENT 

American  people,  enough  pride  in  their  past,  interest  in  the  present,  and 
hope  of  the  future,  to  protect  us  against  any  possible  danger  that  the  Con- 
stitution might  be  impaired  by  the  adoption  of  an  unwise  amendment. 
It  requires  three-fourths  of  the  States,  either  through  conventions  or 
through  State  legislatures,  to  ratify  any  amendment  to  the  Constitution. 
I  can  not  believe  that  any  amendment  not  deserving  ratification,  any 
amendment  which  really  would  not  be  an  improvement,  an  enlarge- 
ment, a  perfecting,  of  the  Constitution  would  meet  with  the  approval 
of  legislatures  or  conventions  in  three-fourths  of  the  States  of  this  Union. 
Of  course,  our  action  here,  if  any  action  is  to  be  taken  along  this  line, 
would  be  action  only  after  the  State  legislatures,  to  the  number  of  two- 
thirds  of  those  in  the  Union,  shall  have  called  upon  us  for  action.  A 
good  deal  of  time  has  been  taken  in  committee  and  some  in  the  House 
and  in  the  Senate  on  various  propositions  to  amend  the  Constitution. 
Every  session  these  propositions  are  up.  There  are  hearings  before 
committees  and  occasional  reports,  sometimes  lengthy  and  sometimes 
learned,  upon  this  or  that  proposition,  but  no  amendments  are  made, 
and  no  opportunity  is  given  the  people  to  consider  whether  or  not  any 
amendment  should  be  made. 

I  am.  one  of  those  who  believe  that  there  ought  to  be  recurrence  as 
frequently  as  possible  to  the  judgment  of  the  mass  of  American  citizens. 
I  believe  that  under  our  system  of  government  it  is  wise  every  now  and 
then,  and  quite  frequently,  to  get  at  the  sense  of  our  people,  affording 
them  full  opportunity  to  make  themselves  heard.  There  is  a  growing 
feeling,  I  think,  and  I  think  it  is  one  that  has  foundation  in  real  fact  and 
real  need,  that  very  often  legislation  is  too  far  away  from  the  masses  of 
the  people ;  that  their  will  is  expressed  in  legislation  too  slowly  and  too 
imperfectly;  that  combined  powers  that  can  make  known  their  wishes 
quickly,  that  exert  their  potent  influence  rapidly,  that  can  concentrate 
at  the  very  point  where  things  are  to  be  done,  are  more  likely  to  prevail 
than  the  profound  sentiments  of  the  scattered  citizenship  of  the  country. 

There  are  a  great  many  people  who  believe  that  in  our  Constitution 
there  ought  to  be  provision  made  for  what  is  popularly  known  as  the 
Initiative  and  Referendum,  by  means  of  which  the  people  themselves 
might  directly  suggest  and  initiate  and  directly  pass  upon  legislation. 
I  believe  our  Constitution  would  be  improved  by  providing  in  it  for  this 
exercise  of  power  by  the  people. 

The  whole  problem  of  modern  government,  where  the  people  seek  to 
govern  themselves,  is  involved  in  the  one  proposition  of  enabling  the 
great  masses  of  people,  the  999,  scattered  and  dispersed  in  their  various 
vocations  over  the  country,  to  make  their  power  felt,  register  their  will, 
and  have  done  that  which  they  desire  to  have  done,  in  their  own  interest, 
for  the  welfare  of  the  whole  community  and  for  the  perpetuity  of  the 
Government.  It  is  vastly  important  for  the  people  that  they  be  pro- 
vided with  the  means  of  opposing  effectively,  and  surely  and  swiftly 


CENTRALIZATION  767 

overcoming  those  who  have  usurped  authority,  and  those  who  by  the 
concentration  of  wealth  and  by  the  powerful  modern  agencies  for  its 
creation  and  utilization  in  all  sorts  of  ways,  good  and  bad,  are  constantly 
pushing  on  to  further  their  own  interests  and  are  constantly  growing 
more  heedless  of  the  rights  and  interests  of  the  plain  American  citizen. 
Now,  if  the  Constitution  could  be  amended  so  that  the  people  will  have 
more  power,  so  that  there  may  be  quicker  response  to  popular  demands, 
so  that  there  may  be  a  correct  and  more  authoritative  registering  of  the 
popular  will,  very  much  will  have  been  done  toward  insuring  the  per- 
petuity of  government  and  preserving  and  enforcing  the  rights  of  our 
citizens. 

An  election  was  held  last  month  for  Members  of  the  House  of  Repre- 
sentatives of  the  Sixtieth  Congress.  Unless  there  should  be  an  extraor- 
dinary session  called,  the  Members  then  elected  will  not  assemble  to 
discharge  the  duties  of  their  office  until  December  of  next  year  — 
1907  — thirteen  months  after  they  were  elected.  There  really  ought  to 
be  in  the  Congress  of  the  United  States,  as  there  is  in  all  of  the  State  leg- 
islatures, an  assembling  of  the  newly  elected  body  quickly  after  the 
election,  while  the  Members  are  fresh  from  the  people,  whence  they 
come  with  the  authorization  of  the  people,  the  command  of  the  people, 
to  do  certain  things  and  to  refrain  from  the  doing  of  certain  other  things ; 
to  make  new  laws ;  to  amend  or  repeal  old  laws.  A  great  many  things 
happen  in  this  country  in  the  space  of  thirteen  months,  and  Represen- 
tatives who  do  not  serve  the  people  early,  often  do  not  actually  serve 
them  at  all. 

It  is  true  that  a  Congress  could  be  assembled,  under  the  Constitution 
as  it  is,  very  much  earlier  than  we  meet.  Instead  of  meeting  on  the 
first  Monday  of  December,  we  could  fix  our  meeting  day  at  any  time 
after  the  commencement  of  the  Congressional  term.  Any  time  after  the 
4th  of  next  March  the  Sixtieth  Congress,  by  operation  of  law,  if  we  saw 
proper  to  change  the  law  with  reference  to  the  time  of  meeting,  might 
be  assembled.  Somehow  or  other,  I  know  not  why,  there  seems  to  be 
opposition  to  any  change,  and  the  result  is,  Congress  after  Congress,  we 
meet  first  in  December,  thirteen  months  after  our  election.  We  choose 
Members  of  the  House  of  Representatives  for  two  years,  and  thirteen 
months  of  that  period  are  suffered  to  pass  before  the  Representatives 
enter  upon  the  discharge  of  their  duties.  This  would  appear  passing 
strange  if  it  were  not  so  familiar  and  common,  if  it  were  not  the  order 
of  things.  It  is  strange  that  we  do  not  amend  the  law,  do  the  best  that 
we  can.  But  there  could  very  easily  be  an  amendment  to  the  Constitu- 
tion, if  a  convention  were  assembled  to  consider  such  things,  by  means 
of  which  Congress  would  be  assembled  soon  after  the  election,  speedily, 
in  January  or  even  in  December  following  the  election. 

Then  there  is  no  reason  why  a  Congress,  after  its  successor  has  been 
chosen,  should  sit  at  all,  except  in  extraordinary  session,  before  the 


768  AMERICAN  FEDERAL   GOVERNMENT 

new  Congress  comes  in  —  when  there  is,  in  the  judgment  of  the  Presi- 
dent, an  emergency  for  Congressional  action  before  the  new  Congress 
can  act. 

There  is  no  reason  in  the  nature  of  things,  there  is  no  reason  in  the 
essence  of  good  government,  why  this  Congress  instead  of  the  new  Six- 
tieth Congress  should  now  be  in  session.  Those  who  declined  reelec- 
tion or  failed  to  secure  it  are  supposed  not  to  be  so  vigilant,  so  zealous, 
in  the  closing  months  of  a  term  as  those  newly  elected,  who  have  the 
stimulus  of  a  fresh  baptism  of  popular  favor,  and  something  here  for 
ambition  to  feed  upon.  I  speak  of  this  in  generalities,  because  I  know 
in  many  instances  men  whose  terms  are  soon  to  expire  have  enough 
vigilance  and  are  patriotic  enough  to  be  useful  up  to  the  very  last  hour 
of  their  service  in  a  short  session  of  Congress,  when  they  know  they  will 
not  be  Members  of  the  next  Congress. 

There  can  be  no  good  reason  why  a  Congress  should  be  elected  in 
November,  for  a  period  of  two  years,  to  assemble  thirteen  months  later, 
and  in  a  few  months  perhaps  be  involved  in  the  throes  of  the  on-coming 
campaign,  a  very  large  share  of  the  membership  being  candidates  for 
renomination  and  reelection.  Now,  it  may  be  supposed,  and  if  we  were 
not  acquainted  with  the  history  of  things  and  did  not  know  how  things 
go  here,  it  would  be  supposed,  that  a  change  in  the  meeting  time  of  Con- 
gress could  be  easily  effected;  but  it  can  not  be  easily  effected.  We 
know  that  for  years  and  generations,  even,  there  have  been  efforts  made 
without  effect  for  a  change,  and  perhaps  other  years  and  other  genera- 
tions may  pass  without  its  being  accomplished.  But  I  think  it  is  very 
fair  to  assume  that  through  a  Constitutional  convention  this  change  at 
least  might  be  made ;  and  if  the  Constitution  were  amended  in  no  other 
particular,  if  no  other  change  were  made  in  it,  there  would  be  enough 
of  consideration  for  all  the  expense  and  all  the  labors  of  the  convention 
if  provision  were  made  for  assembling  Congress  speedily  after  election. 
To-day  a  constitutional  amendment  is  necessary,  because  now  the  term 
begins  on  the  4th  day  of  March,  and,  by  shortening  or  lengthening  one 
term,  it  should  be  made  to  begin  in  December  or  January  next  after 
the  election. 

Now,  I  believe  there  would  be  wisdom  in  an  amendment  limiting  the 
incumbency  of  the  Presidential  office  to  a  single  term.  In  some  of  the 
States  the  governor  is  ineligible  to  reelection  as  his  own  successor,  as 
in  Missouri,  where  the  treasurer  likewise  is  ineligible. 

When  "you  look  to  the  new  State  constitutions,  there  will  be  found 
many  minor  provisions  which  might,  with  great  propriety,  be  incor- 
porated in  the  Federal  Constitution.  For  instance,  a  number  of  these 
constitutions  enable  the  governor  to  veto  items  in  appropriation  bills. 
A  bill  may  contain  thousands  of  items,  and  the  governor  has  the  right 
to  veto  any  one  or  any  number  of  them  and  approve  the  bill  as  to  the 
others. 


CENTRALIZATION  769 

I  believe  such  a  provision  would  be  immensely  beneficial.  There  are 
a  number  of  abuses  it  would  cut  off,  and  the  saving  would  be  great. 
Too  often  it  is  only  necessary  to  get  an  item,  no  matter  how  objection- 
able, into  a  great  appropriation  bill,  and  as  the  bill  must  go  through  and 
does  go  through,  that  item  stands  with  the  very  best  and  the  most  neces- 
sary ones  in  it.  The  result  is  that  combinations  are  invited,  and  some- 
times, I  fear,  combinations  are  made,  by  which  A  assists  B  and  B  assists 
A,  and  the  unholy  alliance  extends  through  the  alphabet,  with  the  re- 
sult that  probably  two  or  three  or  a  dozen  or  fifty  or  a  hundred  items 
are  incorporated  in  the  bill,  not  one  of  which,  perhaps,  has  merit  enough 
to  stand  alone  or  to  win  by  itself  upon  its  own  merits.  Now,  if  the 
President,  when  he  comes  to  pass  upon  such  a  bill,  could  veto  any  item 
or  items  in  it,  there  would  be  cut  off  the  tendency  to  the  abuse  of  com- 
binations for  the  purpose  of  loading  up  bills,  and  in  large  part  the  pos- 
sibility of  success,  because  it  might  be  assumed  that  most  objectionable 
items  would  be  vetoed. 

Then  I  think  the  veto  power  itself  ought  to  be  limited,  for  I  do  not 
believe  that  the  President's  power  in  legislation  ought  to  be  equal  to 
the  voting  power  and  the  persuasive  power  of  one-sixth  of  the  member- 
ship of  the  House  and  one-sixth  of  the  membership  of  the  Senate.  It 
is  one  thing  for  the  President  to  veto  a  bill  and  it  is  another  thing  for 
that  veto  to  be  effective,  unless  one-sixth  of  the  membership  of  this 
House  and  one-sixth  of  the  membership  of  the  Senate,  added  to  a  ma- 
jority of  each  body,  unite  to  override  the  veto.  The  real  purpose  of  a 
veto,  it  seems  to  me,  ought  to  be  to  invite  the  attention  of  the  legisla- 
tive body  to  supposed  objections  in  the  matter  vetoed.  It  ought  to  be 
rather  in  the  way  of  a  holding  up,  a  cautionary  sort  of  proceeding.  It 
ought  not  to  require  so  large  a  vote  to  overcome  a  veto.  It  ought  to  be 
rather  a  check  upon  legislation,  a  challenging  of  the  special  attention  of 
the  lawmakers  to  the  matter  regarded  as  objectionable.  "I  do  not  be- 
lieve this  matter  ought  to  pass.  Please  look  into  it  more  carefully; 
please  give  it  reconsideration  and  see  what  your  deliberate  judgment 
about  it  is."  But  of  late  years  there  has  been  no  particular  abuse  of 
the  veto  power,  and  a  change  in  it  is  perhaps  a  matter  of  comparatively 
small  importance. 

But,  as  to  the  main  proposition.  Here  we  have  a  Constitution,  one 
of  the  greatest  and  best  ever  brought  into  being  by  human  brains;  we 
have  a  Constitution  framed  in  the  infancy  of  the  Republic,  framed  in 
the  primitive  days,  before  the  great  railroad  had  an  existence,  before 
great  electric  motors  and  telegraph  and  telephone  were  known;  before 
the  modern  agencies  called  " trusts"  had  a  being  or  were  dreamed  of; 
before  the  appearance  of  the  millionaire  as  a  common,  every-day  citizen ; 
before  the  near  approach  of  the  billionaire;  before  the  aggregation  of 
hundreds  and  thousands  of  millions  of  dollars  under  single  control; 
and  it  seems  to  me  that  in  our  progress,  in  the  history  of  our  nation  and 

49 


770  AMERICAN  FEDERAL   GOVERNMENT 

of  the  world,  we  certainly  have  reached  a  time  when  it  might  be  wise 
to  assemble  a  convention  to  consider  whether  or  not  amendments  could 
with  profit  be  proposed  to  the  great  conservator  of  our  liberties;  and 
if  they  should  be  proposed,  for  the  people  deliberately,  after  their  own 
manner,  in  their  own  fashion,  to  consider  whether  or  not  the  Constitu- 
tion should  be  amended. 

Now,  out  of  the  discussion  that  would  necessarily  arise  in  a  conven- 
tion and  after  a  convention  certainly  would  come  an  awakening  that 
could  not  be  anything  else  than  beneficial  to  the  people  of  this  country. 
There  would  be  attention  centered  upon  matters  that  are  now  over- 
looked and  neglected.  The  people  would  have  opportunity  to  assert 
their  power  and  resume  their  control  over  some  of  the  things,  control 
of  which  has  largely  slipped  from  their  hands.  For  instance,  there  is 
going  on  all  the  time  now  a  conflict  in  opinion,  and  sometimes  a  con- 
flict beyond  opinion,  between  capital  and  labor,  where  serious  questions 
as  to  the  writ  of  injunction  are  involved.  There  has  been  a  great  deal 
of  discussion  and  much  uncertainty  in  a  great  many  minds  as  to  how 
the  matter  really  stands.  There  is  one  school  of  thought  that  takes  the 
view  that  the  courts  have  the  inherent  power  to  determine  what  writs 
they  ought  to  issue,  and,  if  they  decide  they  ought  to  issue  particular 
ones,  to  issue  them ;  that  it  is  an  inherent,  necessary,  preservative  power 
and  prerogative  of  the  courts ;  that  the  court  must  say  what  is  necessary 
to  maintain  its  dignity  and  preserve  its  authority  and  execute  its  man- 
dates, and  that  there  is  no  power  under  the  Constitution,  no  agency  in 
the  Government,  to  interfere  with  that  exercise  of  authority. 

Then  there  is  another  school  of  thought  claiming  that  the  courts,  ex- 
cepting alone  the  Supreme  Court  of  the  United  States,  being  creatures 
of  the  law-making  power,  are  within  the  scope  of  such  laws  as  are  made 
and  such  laws  as  may  be  made;  that  the  question  whether  or  not  par- 
ticular writs  should  issue,  the  circumstances  under  which  they  shall 
issue,  if  issued  at  all,  are  legislative  questions  and  not  judicial  questions ; 
that  the  power  to  make  courts  is  the  power  also  to  unmake  courts ;  that 
the  right  to  confer,  through  legislative  action,  power  upon  courts  car- 
ries with  it  also  the  constitutional  right  to  circumscribe  that  power,  take 
away  part  of  it,  and  direct  how  it  shall  be  exercised. 

Now,  that  is  an  unsettled  question  in  this  country,  with  a  tendency 
all  the  time  in  the  courts  to  magnify  themselves  and  to  determine  more 
and  more  and  more  that  they  have  this  power  and  that  power,  never 
given  to  them,  as  was  foreseen  by  the  wise  men  of  the  early  day ;  a  tend- 
ency ever  toward  magnifying  the  power  of  the  courts  and  lessening  the 
power  of  the  legislative  and  executive  branches  when  brought  into  con- 
flict with  them,  and  what  is  of  far  more  importance,  lessening  in  a  good 
many  instances  the  inherent  and  vital  privileges  and  immunities  of  the 
people. 

I  believe  a  great  deal  of  good  might  be  done  by  a  constitutional  con- 


CENTRALIZATION  771 

vention  considering  that  among  other  questions.  Shall  our  courts  be 
final  and  supreme  arbiters  ?  Shall  the  courts  determine  what  its  powers 
are?  Shall  the  court,  independently  of  the  Congress,  determine  when 
it  shall  issue  a  particular  writ,  who  violates  an  injunction  or  a  writ  of 
prohibition  or  any  other  extraordinary  writ,  and  what  the  punishment 
shall  be  —  all  determined  by  a  single  lifetime  appointee  —  or  shall  the 
people,  through  those  whom  they  elect  to  Congress  from  time  to  time 
and  who  are  responsible  to  them,  determine  what  the  power  of  the 
courts  shall  be?  Shall  the  Congress  determine  within  what  bounds  the 
powers  given  shall  be  exercised,  what  powers  they  will  give  to  the  courts, 
and  what  powers  they  will  withhold  from  them?  I  believe  a  question 
like  this  is  worthy  of  the  consideration  of  the  ablest  minds  of  the  coun- 
try, and  I  believe  that  a  great  constitutional  convention  would  give  to 
it,  as  to  other  great  questions  that  would  naturally  arise  and  naturally 
be  suggested,  the  consideration  which  they  really  merit. 

Now,  I  believe  one  of  the  troubles  of  this  country  at  this  time  in  the 
conflict  between  labor  and  capital  grows  out  of  the  assumption  on  the 
part  of  the  courts  of  the  right  to  issue  certain  writs  when  they  have  no 
right  to  issue  them  unless  authorized  by  the  law-making  power  to  issue 
them.  A  court  created  by  law  possesses  no  power  except  what  the  law 
gives  it.  [Applause.]  Those  who  can  create  can  destroy,  if  they  see 
proper  to  destroy;  those  who  can  grant  power  can  withhold  power. 
The  question  of  whether  or  not  a  particular  writ  should  issue  in  a  par- 
ticular instance  —  barring  only  the  United  States  Supreme  Court, 
created  by  the  Constitution  itself  —  certainly  ought  to  be,  it  seems  to 
me,  a  question  to  be  determined,  as  all  other  questions  of  law  making 
are  determined,  by  the  law-making  body  of  the  country  —  the  Congress 
of  the  United  States.  And  there  ought  to  be  some  way  of  getting  at 
undesirable  judges,  whether  unfaithful  or  no  longer  efficient,  and  some- 
thing more  expeditious,  something  less  cumbersome,  something  surer 
than  the  one  remedy  provided  by  the  Constitution  —  impeachment  — 
ought  to  be  available.  There  ought  to  be  something  equivalent  to  re- 
moval by  address.  There  ought  to  be  some  added  sense  of  responsi- 
bility imposed  upon  every  man  who  holds  a  judicial  office  in  this  country 
by  life  tenure. 

Mr.  STANLEY.  Is  it  not  true  that  that  was  one  of  the  first  defects 
pointed  out  in  the  Constitution  within  a  few  years  after  it  was  adopted  ? 
If  my  memory  serves  me  correctly,  Thomas  Jefferson  pointed  out  the 
danger  of  putting  that  power  into  the  hands  of  the  court. 

Mr.  DE  ARMOND.  Well,  of  course,  Mr.  Chairman,  Jefferson's  writ- 
ings I  think  are  full  of  warnings  and  admonitions  and  expressions  of 
fear  as  to  what  may  result  from  an  encroaching  judiciary. 

Everybody  in  this  country  has  respect  for  the  courts,  and  in  a  body 
like  this,  where  a  large  majority  are  members  of  the  oar  and  a  good 
many  of  them  ex-judges,  of  course  respect  to  the  highest  degree  exists, 


772  AMERICAN  FEDERAL   GOVERNMENT 

but  there  is  a  tendency  in  the  human  mind  and  in  human  conduct  to 
gather  power,  and,  unconsciously  perhaps  —  sometimes  unconsciously 
and  sometimes  consciously  —  to  usurp  authority.  You  appoint  a  man 
judge  for  life,  removable  only  by  impeachment,  a  slow,  tedious  process, 
which,  as  the  history  of  the  country  shows,  usually  brings  no  results. 
All  he  has  to  do  is  to  avoid  an  offending  on  account  of  which  he  can  be 
removed  by  the  process  of  impeachment.  A  large  number  of  his  actions 
are  not  reviewable  in  higher  courts.  Either  there  is  no  provision  for 
review  or  those  affected  injuriously  are  too  poor  to  go  to  a  higher  court. 
The  result  is  that  there  is  a  tendency  all  the  time  for  the  judge  —  as- 
suming he  is  trying  to  do  what  is  right  and  proper  —  if  he  thinks  the 
case  is  one  calling  for  a  strong  remedy  to  bottom  his  decision  and  justify 
his  action  upon  the  most  extreme  action,  the  most  radical  assertion  of 
power,  of  any  other  court  or  judge  whose  ruling  falls  under  his  notice. 
He  may  go  a  little  grain  beyond  any  other  one.  Another  case  arises, 
and  another  judge  goes  further  still,  following  and  enlarging  upon  prece- 
dent; and  so  it  goes,  a  constant,  steady,  gradual,  and  sure  advance  in 
the  claim  of  power,  in  the  assumption  of  power,  in  the  exercise  of  power, 
with  no  unquestioned  agency  to  check  or  correct.  Now,  take  the  matter 
of  injunctions,  if  you  please. 

Mr.  STANLEY.  Will  the  gentleman  yield  for  an  interruption  at  that 
point  ?  I  am  very  deeply  interested,  and  I  would  like  to  ask  the  gentle- 
man it  he  does  not  think  it  would  be  wise,  in  cases  of  constructive  con- 
tempts, where  heavy  fines  and  long  terms  of  imprisonment  may  probably 
be  imposed,  to  have  the  punishment  inflicted  by  the  intervention  of  a 
jury? 

Mr.  DE  ARMOND.  Mr.  Chairman,  I  have  heretofore  expressed  my- 
self in  favor  of  that,  but  I  am  trying  to  talk  now  about  the  fundamental 
principles  rather  than  about  the  details  of  legislation. 

The  writ  of  injunction,  of  course,  is  an  old  writ.  The  courts  assume  to 
apply  it  to  new  facts,  to  new  cases  as  they  arise.  The  question  comes 
up,  and  a  most  interesting  question  it  is  —  it  is  one,  in  my  judgment, 
that  could  be  dealt  with  by  legislation,  but  more  effectively  dealt  with 
by  a  constitutional  convention  —  when  the  new  facts  arise,  when  the 
new  conditions  are  brought  about,  when  there  is  supposed  to  be  occasion 
for  the  application  of  an  old  principle  to  a  new  case  —  who  is  to  say, 
who  has  the  right  to  say,  whether  the  old  principle  or  the  old  writ  shall 
be  applied  to  the  new  state  of  facts,  to  the  new  condition  of  things  ?  The 
judges  assume  that  they  have  the  right,  and  for  a  century  in  this  country 
and  more  they  have  been  steadily  moving  forward  on  that  theory.  My 
judgment  is  that  the  legislative  body,  and  that  alone,  has  the  right  to  say 
whether  when  a  new  state  of  things  arises,  when  new  conditions  develop, 
when  new  agencies  are  brought  into  play,  this  or  that  writ  or  this  or  that 
process  shall  be  employed. 

Now,  take,  for  instance,  the  great  development  in  railroad  building 


CENTRALIZATION  773 

and  railroad  operation.  In  the  olden  days,  when  the  writ  of  injunction 
came  into  being,  there  were  no  railroads.  No  question  arose  as  to  whether 
there  ought  to  be  an  injunction  issued  in  a  dispute  between  the  mighty 
employer  and  the  humble  employee,  because  none  could  arise.  There 
were  no  such  conditions  and  no  such  situation  at  that  time.  In  the 
process  of  time,  by  means  of  inventions,  development  of  the  country, 
growth  of  population,  multiplication  of  corporations,  vast  increase  in 
their  power,  functions,  and  ramifications,  new  questions  arose,  entirely 
different  from  the  issues  of  the  dead  centuries.  Yet  the  contention  is 
that  in  order  to  determine  what  a  court  of  its  own  power  and  right  — 
its  own  inherent,  necessary  power,  as  they  say,  and  its  own  constitu- 
tional and  prerogative  right  —  may  do  or  shall  do,  the  courts  are  justi- 
fied in  drifting  away  back  to  the  pretended  fountain  of  judicial  power, 
the  decisions  of  English  judges  and  English  courts,  centuries  ago,  in 
cases  having  really  no  analogy,  when  you  consider  them  properly,  to 
the  cases  in  which  the  principles  thence  deduced  are  now  applied.  Now, 
is  it  in  the  power  of  the  courts  to  go  on  eternally  in  that  way  ?  Is  it  the 
right  of  the  courts  to  determine  when  new  conditions  arise,  when  new 
agencies  come  into  play,  what  they  shall  do,  and  how  they  shall  do  it, 
or  is  the  determination  within  the  power  of  the  law-making  body  ?  My 
judgment  is  that  the  law-makers  have  the  right  to  determine  about  it. 
Some  people  talk  as  if  when  you  interfere  with  the  courts  in  any  par- 
ticular, when  you  raise  any  question  as  to  whether  a  court  possesses 
power  which  different  judges  of  the  country  assume  to  have  and  which 
they  exercise,  you  are  seeking  to  undermine  the  foundations  of  our 
Government  and  destroy  property  rights ;  invading  the  province  wherein 
the  courts  stand  as  the  guardians  and  protectors  of  everything  that  the 
citizen  enjoys  under  the  law. 

Who  make  the  laws  ?  The  representatives  of  the  body  of  our  citizen- 
ship itself,  men  selected  for  the  very  purpose  of  doing  that  very  work, 
men  responsible  to  their  constituents  for  the  way  in  which  they  do  it  or 
for  neglect  to  do  it.  What  reason  is  there  to  suppose  that  these  men  will 
not  have  as  tender  a  regard  for  those  upon  whom  they  directly  depend 
as  will  these  lifetime  judges  who  are  not  dependent  at  all  upon  the  great 
body  politic  ? 

I  did  not  mean  to  drift  off  into  a  discussion  of  this  matter,  because  it 
is  really  foreign  to  the  subject  to  which  I  wished  to  address  myself. 
What  I  wished  was  merely  to  throw  out  the  suggestion  that  I  think  the 
time  has  arrived  when  a  constitutional  convention  might  by  action  of 
Congress,  stimulated  and  brought  about  under  the  Constitution  by  the 
State  legislatures,  be  assembled  to  consider  whether  or  not  in  some  im- 
portant particulars  this  great  Constitution  of  ours  might  not  be  made 
better.  This  little  discussion  with  regard  to  injunctions,  by  way  of 
illustration,  although  it  went  much  further  than  illustration,  is  an  after- 
thought, and  just  simply  happened. 


774  AMERICAN   FEDERAL   GOVERNMENT 


NEW  FIELDS   FOR   FEDERAL  POWER1 

"BEFORE  many  years,"  said  in  effect  a  conservative  member  of  Con- 
gress the  other  day,  "there  will  not  be  left  a  department  of  human  life 
over  which  the  national  government  does  not  somehow  exercise  control. 
"Great  as  have  been  the  extensions  of  Federal  functions  within  a  com- 
paratively few  years  past,  there  are  enough  others  in  contemplation  to 
draw  from  their  graves  the  statesmen  who  were  arguing  against  internal 
improvements  three-quarters  of  a  century  ago.  In  the  President's  last 
annual  message  there  were  no  less  than  eight  specific  recommendations 
involving  the  exercise  of  new  functions,  or  the  assumption  of  new  tasks, 
by  the  Federal  Government.  And  if  a  list  were  compiled  of  the  sug- 
gestions made  along  the  same  lines  by  bills  now  before  Congress,  or 
resolutions  of  public  bodies  —  leaving  out  freak  bills  and  constitutional 
amendments  —  it  would  probably  be  twice  as  long. 

Railroad  rate-making  happens  to  be  the  most  conspicuous  proposal 
just  at  present.  This  is  one  of  the  things  the  National  Government  is 
asked  to  do  because,  unless  it  undertakes  the  task,  it  will  not  be  per- 
formed at  all.  The  States  could  not  secure  the  same  results  even  if 
they  all  cooperated  to  the  full.  The  same  may  be  said,  of  course,  re- 
garding the  proposed  regulation  of  express  companies  and  national 
supervision  of  insurance.  Other  measures,  widely  differing  in  subject- 
matter,  fall  into  the  same  general  class,  because  they  propose  that  the 
government  shall  do  something  not  done  by  anybody  at  present,  or  at 
least  not  done  efficiently.  Such,  for  instance,  are  the  protection  of 
Niagara  Falls  —  in  which  the  Federal  power  over  boundaries  may  be 
invoked  —  the  preservation  of  the  Great  Lake  fisheries  by  international 
agreement,  and  Commissioner  Sargent's  much  discussed  scheme  for 
deflecting  the  stream  of  immigrants  to  those  sections  of  the  country 
where  they  are  wanted. 

Next  may  be  classed  the  proposals  which  are  urged  on  the  ground 
that  the  Federal  Government  should  step  in  merely  to  give  the  several 
States  a  chance  to  regulate  their  own  affairs.  These,  for  the  most  part, 
grow  out  of  changed  conditions.  Centers  of  production  and  consump- 
tion have  come  to  be  so  far  apart,  transportation  so  easy,  and  traveling 
so  incessant,  that  local  regulations,  once  amply  sufficient,  have  proved, 
in  many  lines,  to  be  little  better  than  farcical.  The  Pure  Food  bill  owes 
much  ,of  its  backing  to  the  fact  that  a  State  with  good  food  laws  is  now 
at  the  mercy  of  one  with  bad  laws  or  none,  which  can  flood  it  with  im- 
pure products;  the  prohibition  communities  never  cease  asking  for 
Congressional  action  that  will  undo  the  "original  package"  decisions 
and  help  the  State  authorities  to  stop  liquor  in  transit  the  moment  it 

1  The  Nation,  32:  131. 


CENTRALIZATION  775 

crosses  the  line.  Other  bills  favored  by  the  same  interests  wish  a  law 
that  will  make  the  records  of  the  internal-revenue  office  more  useful 
in  the  prosecution  of  illicit  liquor-sellers.  The  national  quarantine  law, 
which,  as  always  after  the  threat  of  an  epidemic,  is  being  strongly  urged 
this  year,  would  similarly  save  the  neighboring  States  from  the  conse- 
quences of  the  laxity  of  any  one.  And  President  Roosevelt's  recom- 
mendation, that  the  criminal  process  of  each  State  be  made  to  run 
throughout  the  entire  country,  bears  somewhat  the  same  relation  to 
moral  health. 

Finally  should  be  mentioned  those  instances  in  which  national  action 
is  urged  chiefly  to  secure  uniformity  of  system  in  some  department. 
The  practical  restriction  of  naturalization  to  the  Federal  courts,  as 
recommended  recently  by  a  commission,  is  one  example,  and  another 
the  partly  completed  extension  of  national  trade-mark  legislation; 
while  the  national  child-labor  law,  strongly  pushed  by  a  State  labor 
commissioner  recently,  though  without  citation  of  the  constitutional 
provision  which  would  authorize  it,  is  a  type  of  many  benevolent  meas- 
ures so  advocated.  Though  some  of  these  have  been  actively  opposed 
and  some  kept  from  passage  for  many  years,  the  argument,  on  abstract 
principles,  of  danger  from  the  assumption  of  additional  functions  by 
the  Federal  Government  is  almost  never  heard.  In  fact,  it  is  remark- 
able how  much  support  such  measures  have  in  the  old  region  of  jealous 
States-rights  sentiment.  The  national  quarantine  is  distinctively  a 
Southern  measure,  the  liquor  shipment  bills  are  most  strongly  advo- 
cated there,  and  as  for  pure  food,  two  Southern  States  are  the  only  ones 
which,  by  a  provision  of  their  State  law,  have  made  the  food  standards 
of  the  Secretary  of  Agriculture  go  into  effect  within  their  borders  as  fast 
as  promulgated.  So  a  number  of  Southern  as  well  as  Northern  States 
have  voluntarily  turned  over  their  quarantine  stations  to  the  Public 
Health  and  Marine  Hospital  Service. 

Efficiency  has  come  to  be  the  controlling  argument  in  most  of  these 
cases.  Our  National  Government  has  a  way  of  getting  things  done  — 
not  economically  perhaps,  but  efficiently  —  that  the  States  simply  stand 
by  and  envy.  The  illicit  liquor-seller,  who  defies  the  sheriff  and  the 
chief-of-police,  would  not  dare  to  run  for  a  week  without  paying  his 
Federal  tax.  The  Federal  officer,  in  any  line  of  work,  is  freer  from 
hampering  local  influences  and  is  apt  to  be  backed  up  more  firmly  in 
doing  his  duty.  The  present  advocacy  of  Federal  control  as  a  general 
panacea  is  really  not  so  much  an  indication  of  changing  Constitutional 
views,  as  a  tribute  to  the  relatively  effective  way  in  which  power  is  ap- 
plied from  Washington. 


776  AMERICAN   FEDERAL   GOVERNMENT 

FROM   A   MEMORIAL   ADDRESS    ON   THE   BATTLEFIELD 
OF   GETTYSBURG 

BY  REPRESENTATIVE  JAMES  A.  TAWNEY  * 

"I  DO  not  plead  for  States  rights.  I  plead  for  the  right  and  the  duty 
of  the  Federal  Government  to  protect  itself  and  its  Treasury  against 
the  encroachments  of  the  States  and  private  interests  upon  its  powers,  its 
duties,  and  its  revenues." 

******** 

In  the  early  part  of  the  nineteenth  century  there  was  fear  and  danger 
that  the  Union  of  the  States  was  as  a  rope  of  sand  and  would  fall  apart. 
To-day  there  is  more  reason  to  fear  that  the  several  States  and  the  local 
self-government  which  they  represent  will,  for  all  practical  purposes, 
disappear  from  our  politics  as  distinct  entities  and  be  swallowed  up  in 
one  all-embracing  Federal  power.  The  States  not  only  seem  inclined 
to  allow,  but  in  many  instances  are  anxious  voluntarily  to  surrender, 
to  the  Federal  Government  the  discharge  of  duties  and  the  exercise  of 
powers  and  privileges  reserved  to  them  by  the  Constitution,  especially 
when  the  exercise  of  those  powers  involves  the  expenditure  of  money. 
They  are  also  to-day  either  soliciting  or  acquiescing  in  a  degree  of 
Federal  supervision  over  their  domestic  affairs  that  less  than  half  a  cen- 
tury ago  would  have  led  to  revolution  had  the  Federal  Government  at- 
tempted to  force  such  supervision  upon  them. 

Much  of  the  Federal  legislation  now  being  enacted,  especially  that 
creating  new  services  in  respect  to  the  local  affairs  of  the  people,  would 
not  twenty-five  years  ago  have  been  tolerated  by  the  States  at  whose 
instance,  through  their  Representatives  in  both  Houses  of  Congress, 
such  legislation  is  now  demanded.  Even  private  interests,  interests 
entirely  outside  of  State  and  Federal  governmental  functions  are, 
through  the  activities  of  the  Federal  bureau  chiefs,  aided  by  the  people 
of  the  States,  seeking  Federal  legislative  authority  and  Federal  appro- 
priations with  which  to  develop  local  industries  for  the  benefit  of  private 
enterprise. 

The  recent  surrender  by  the  Southern  States  of  the  exercise  of  the 
right  reserved  to  them  by  the  Constitution  to  maintain  control,  and 
regulate  local  quarantine,  primarily  because  of  the  expense  incident  to 
the  maintenance  of  an  efficient  State  quarantine ;  the  practical  surrender 
to  the  Federal  Government  recently  made  by  the  State  of  Maryland  of 
sovereignty  over  her  oyster  beds,  that  the  State  might  be  relieved  of  the 
cost  of  an  accurate  and  necessary  survey;  the  Federal  inspection  of  the 
products  of  private  manufacturing  establishments  and  the  sanitary  in- 

1  Delivered  May  30,  1907.    Reported  in  the  Congr.  Record,  May  16,  1908. 


CENTRALIZATION  777 

spection  and  control  of  the  establishments  themselves;  the  Federal 
inquiry  into  the  physical,  mental,  and  social  conditions  surrounding 
women  and  child  labor  in  all  local  industrial  occupations,  with  a  view 
ultimately  to  securing  national  legislation  to  regulate  domestic  occupa- 
tion ;  the  inspection  of  cattle,  of  insects,  and  of  all  agricultural  products ; 
the  investigation  of  soils,  in  which  the  Federal  Government  has  no  in- 
terest; the  care  and  disposition  of  timber  on  State  lands  set  aside  by 
the  States  as  forest  reserves;  the  actual  breeding  of  horses  and  cattle, 
primarily  for  the  benefit  of  the  few  fancy  stock  raisers  of  the  country; 
the  making  of  topographic  and  geological  surveys  of  States  in  which 
the  Government  does  not  own  a  foot  of  unoccupied  mineral  or  agricul- 
tural land;  the  making  of  topographic  surveys  of  cities  and  counties, 
primarily  for  the  benefit  of  municipalities,  private  owners  of  water- 
works, and  interurban  and  other  electric  railways;  the  free  testing  of 
coal  by  the  Federal  Government  for  the  benefit  of  private  owners  of 
coal  mines  to  determine  its  quality  in  heat  units  and  the  best  and  most 
economical  utilization  of  the  by-products;  the  free  testing  of  building 
materials  for  the  benefit  of  private  individuals,  contractors,  and  con- 
sulting engineers;  the  work  of  gauging  streams  that  are  nonnavigable 
in  States  where  the  Federal  Government  owns  no  land  and  therefore 
has  no  jurisdiction  or  control  over  the  streams  gauged,  a  work  which, 
as  testified  to  by  the  former  Director  of  the  Geological  Survey,  is  per- 
formed for  the  benefit  of  municipalities  and  "primarily  for  the  benefit 
of  prospective  investors  in  water  powers."  These  and  many  other 
undertakings  which  belong  exclusively  to  the  States  or  private  interests 
to  do  and  to  pay  for,  but  which  have  been  authorized  by  Congress  and 
must  be  paid  for  from  appropriations  made  from  the  Federal  Treasury, 
exceed  the  legitimate  functions  of  the  Federal  Government  as  conceived 
by  the  founders  of  our  political  institutions  and  as  declared  by  them  in 
the  Constitution  of  the  United  States. 

To  illustrate  the  unprecedented  growth  of  Federal  supervision  and 
control  over  the  local  affairs  of  the  people  at  the  solicitation  or  with  the 
consent  of  the  States,  I  will  call  your  attention  to  the  extent  of  the 
special  agent  and  inspection  service  ten  years  ago  and  at  the  present 
time.  It  is  through  this  service  that  supervision  and  control  over  the 
domestic  affairs  of  the  people  is  exercised  by  the  Federal  Government. 
In  1896  the  inspectors  and  special  agents,  including  those  employed 
in  the  Treasury,  the  Post-office,  and  the  Interior  Departments,  where 
that  service  is  legitimately  employed  in  protecting  the  revenue,  the 
mails,  and  the  public  domain,  numbered,  all  told,  160,  and  this  service 
cost  the  Government  in  1896,  in  round  numbers,  $1,300,000.  In  1907 
we  are  employing  an  army  of  three  full  regiments  of  inspectors  and 
special  agents  —  3,000  men  —  and  this  service  is  now  costing  the  Ameri- 
can people  about  $9,000,000,  while  the  full  quota  heretofore  authorized 
has  not  yet  been  appointed  or  appropriated  for.  The  number  of  men 


778  AMERICAN   FEDERAL   GOVERNMENT 

employed  in  this  service  in  1907  is  therefore  more  than  eighteen  times 
greater  than  in  1896,  and  the  cost  has  increased  about  700  per  cent  in 
ten  years. 

We  hear  it  said  by  some  that  whatever  enters  into  or  concerns  inter- 
state commerce  and  whatever  affects  the  welfare  of  the  people  of  more 
than  one  State  logically  falls  within  the  provisions  of  the  National  Gov- 
ernment, and  this  is  made  the  apology  for  such  authorizations  and  ex- 
penditures as  I  have  referred  to  and  for  many  other  demands  upon  the 
Federal  Treasury  which  the  Congress  has  not  yet  seen  fit  to  grant.  But 
can  you  name  a  single  important  matter  which  does  not  affect  the  people 
of  more  than  one  State  ?  Is  there  any  phase  of  any  great  industry  which 
does  not  come  within  the  scope  of  interstate  commerce?  In  short,  is 
there  any  important  private  undertaking  these  days  which  can  not  upon 
some  such  pretext  be  brought  within  control  of  the  Federal  power  ?  And 
yet,  my  friends,  this  is  the  tendency  of  the  times,  the  growth  of  which 
during  the  last  decade  can  be  comprehended  only  by  a  careful  analysis 
of  national  legislation  and  the  aggregate  annual  expenditures  of  the 
Federal  Government.  If  this  tendency  is  not  checked  and  the  States 
continue  to  surrender  the  exercise  of  their  reserved  powers,  or  fail  to 
exercise  them  in  harmony  with  the  interests  of  their  sister  States,  then 
the  Federal  Government,  as  a  dernier  ressort,  may  be  compelled  to  assume 
practical  control  over  the  States  and  the  affairs  of  their  people.  In  that 
case,  with  the  vast  and  varied  local  and  national  interests  of  a  hundred 
or  a  hundred  and  fifty  millions  of  people,  how  long  would  it  be  before 
the  task  of  government  would  become  so  complex  and  the  financial 
burden  so  stupendous  that  of  its  own  weight  our  splendid  system  of 
government  would  fail? 

I  grant  you  that  it  is  more  difficult  now  than  formerly  to  draw  a  line 
between  Federal  and  State  authority,  and  between  Federal  and  State 
expenditures;  but  it  is  not  an  insurmountable  obstacle  to  the  continu- 
ance of  our  dual  system  of  government,  nor  should  this  difficulty  be  made 
the  pretext  for  the  Federal  absorption  of  the  functions  of  the  States  in 
respect  to  local  self-government.  But  I  would  call  your  attention  to 
the  fact,  and  endeavor  to  impress  upon  you  the  direction  in  which  all 
this  is  tending.  The  inclination  on  the  part  of  the  States  to  let  the  Federal 
Government  exercise  the  rights  reserved  to  them  is  greatly  weakening 
the  powers  of  the  States.  What  is  infinitely  worse,  it  is  weakening  the 
respect  of  the  people  for  the  authority  of  the  States.  It  is  also  causing 
the  people  to  ignore  and  forget  all  those  wise  considerations  which  led 
the  founders  of  our  Government  to  provide  for  local  self-government 
by  reserving  to  the  State  all  governmental  powers  not  expressly  con- 
ferred by  the  Constitution  upon  the  Federal  Government. 

It  has  been  suggested  that  the  reason  for  this  practical  change  in  our 
system  of  government  is  to  be  sought  in  the  imperialistic  aggressiveness 
of  the  party  now  in  control  of  the  National  Government.  But,  my 


CENTRALIZATION  779 

friends,  let  us  not  deceive  ourselves  with  shallow  reflections.  The  real 
reason  lies  deeper  than  this.  The  tendency  on  the  part  of  the  States  to 
surrender  the  exercise  of  powers  belonging  to  them  and  the  willingness 
of  the  Federal  Government  to  assume  such  exercise,  together  with  the 
burdens  incident  thereto,  is  not  peculiar  to  any  political  party  nor  to  any 
particular  section  of  our  country.  It  exists  in  all  parties  and  in  every 
section  of  our  fair  land.  Let  him  who  doubts  this  statement  examine 
the  record  of  the  vote  of  the  representatives  of  the  people  in  the  House 
and  the  record  of  the  vote  of  the  representatives  of  the  States  in  the  Senate. 
He  will  find  that  when  there  is  a  demand,  either  from  the  people  or  from 
the  States,  for  the  authorization  of  a  new  Federal  service,  a  service  which 
belongs  to  the  States  or  to  private  interests  to  do,  and  an  appropriation 
from  the  Federal  Treasury  to  pay  for  the  same,  there  will  almost  always 
be  found  in  both  Houses  of  Congress  a  majority  composed  of  men  of 
all  parties  and  from  all  sections  of  the  country  who  do  not  even  pause 
to  inquire  whether  the  proposed  authorization  and  expenditure  falls 
within  the  legitimate  function  of  the  Federal  Government.  Their  only 
concern  is  whether  the  revenues  will  be  equal  to  the  consequent  increased 
appropriations;  and  even  this  consideration  has  but  little  weight,  espe- 
cially if  their  State  or  any  of  their  people  are  to  be  the  beneficiaries. 

The  true  reason,  my  friends,  why  the  people  are  willing  to  let  the 
National  Government  perform  and  pay  for  so  many  things  which  properly 
fall  within  the  obligations  of  the  States  is  found  in  the  fact  that  they  do 
not  realize  that  they  are  themselves  paying  for  the  things  which  the 
National  Government  pays  for.  The  Federal  revenue  is  secured  by 
indirect  taxation,  while  the  money  in  the  treasuries  of  the  several  States 
is  secured  by  direct  taxation  upon  the  property  of  the  people. 

When  any  State  increases  its  appropriations  for  any  purpose,  every 
legislator  knows  that  that  means  an  increase  in  the  direct  tax  upon  the 
people.  Moreover,  he  knows  that  the  people  know  this  and  that  they 
watch  with  zealous  care  the  tax  rate  which  they  must  pay  in  cash  from 
their  own  pockets.  The  legislator  is  slow  to  expose  himself  needlessly 
to  the  criticism  and  disapprobation  of  his  constituents.  Therefore  needed 
legislation  is  postponed  because  of  the  expense  it  involves,  and  the 
Federal  Government  is  appealed  to,  whenever  possible,  through  the 
President,  through  the  people's  Representatives  in  Congress,  and  through 
the  various  Departments  and  bureaus  of  the  Government.  From  my 
experience  I  can  say  that  the  Departments  and  bureaus  of  the  Federal 
Government  are  at  all  times  eager  to  enlarge  the  sphere  of  their  activities 
and  powers  by  taking  on  new  services  and  securing  increased  appropria- 
tions. When  popular  demands  are  strong  enough  and  it  has  become 
obvious  that  the  States  will  not  severally  or  jointly  undertake  obligations 
belonging  to  them,  though  seriously  needed,  the  experience  of  the  last 
ten  years  shows  that  the  Federal  Government,  through  its  legislative 


780  AMERICAN   FEDERAL   GOVERNMENT 

and  executive  departments,  is  only  too  willing  to  undertake  such  re- 
sponsibilities and  relieve  the  States  of  the  burdens  they  involve. 

My  friends,  our  dual  system  of  Government  is  threatened  to-day  by 
the  tendency  of  the  States  thus  to  put  upon  the  National  Government 
the  burden  of  administering  their  local  affairs,  and  this  tendency  is 
constantly  increasing  as  the  result  of  the  failure  on  the  part  of  the  States 
to  perform  their  functions  of  local  self-government,  and  in  this  failure 
they  are  encouraged  by  a  sentiment  created  by  the  press  of  the  country, 
teaching  the  people  to  believe  that  if  the  State  legislatures  do  not  act, 
"the  question  as  to  whether  such  legislation  belongs  in  the  field  of  the 
Federal  Government  will  sink  to  a  purely  academic  question." 

I  do  not  plead  for  States  rights.  I  plead  for  the  right  and  the  duty 
of  the  Federal  Government  to  protect  itself  and  its  Treasury  against  the 
encroachments  of  the  States  and  private  interests  upon  its  powers,  its 
duties,  and  its  revenues.  Where  will  this  tendency  end?  To  what  re- 
sult, think  you,  does  it  naturally  and  inevitably  lead  ?  Whither  are  we 
going  in  this  centralization  of  Federal  power  and  mutilation  of  local  self- 
government  ?  I  lay  no  claim  to  prophetic  powers,  but  I  bring  to  you  the 
thought  of  many  of  the  ablest  men  in  the  public  service  to-day,  when  I 
say  that  we  are  unconsciously  drifting  toward  a  highly  organized,  bureau- 
cratic form  of  Federal  Government,  such  as  has  become  the  bane  of 
most  of  the  Old  World  governments  of  Europe.  We  are,  either  con- 
sciously or  unconsciously,  being  drawn  away  from  the  simple  and  sub- 
lime ideals  of  local  self-government,  which  not  only  gave  shape  to,  but 
enabled  us  to  adopt,  the  Constitution  and  have  given  unique  significance 
to  our  political  history  up  to  the  present  time. 

The  remedy  for  this  tendency,  which  we  can  not  much  longer  look 
upon  with  indifference,  lies  in  the  simple  application  of  the  golden  rule 
by  each  State  to  itself. 

The  only  possible  remedy  lies  in  each  State  taking  upon  itself  the 
burden  of  enacting  all  needful  legislation  and  administering  its  own 
affairs  within  the  rights  and  powers  which  it  possesses,  and  in  each  State 
so  legislating  and  administering  its  affairs  that  other  States  may  do  like- 
wise without  injury  to  any.  The  individual  State  should  not  only  rise 
to  the  legislative  needs  of  its  own  people  in  respect  to  local  self-govern- 
ment, but  should  also  consider  what  is  deemed  needful  for  the  people 
of  other  States  and  act  accordingly.  Unless  this  is  done,  unless  the  States 
can  thus  join  hands  in  the  wise  discharge  of  all  the  obligations  devolving 
upon  them  under  our  dual  form  of  government,  it  is  inevitable  that  some 
of  the  fundamental  features  of  our  present  system  of  government  must 
sooner  or  later  be  abandoned.  For  it  is  certain  that  a  people,  believing 
as  we  do  in  self-government,  will  not  long  tolerate  a  condition  of  affairs 
in  which  the  States  fail  either  to  exercise  the  rights  reserved  to  them  for 
the  benefit  of  their  own  people  or  to  exercise  these  rights  in  harmorty 
with  each  other  and  for  the  best  interests  of  all. 


CENTRALIZATION  781 

It  has  been  said  by  a  member  of  the  Senate  of  the  United  States  that 
such  unity  and  harmony  between  the  States  is  not  possible ;  that  it  can 
not  be  attained  without  the  interference  of  the  Federal  Government. 
This  may  be  true;  but,  my  friends,  no  such  doubt  entered  the  minds 
of  the  makers  of  our  Constitution,  or  was  ever  expressed  by  them  or  by 
anyone  else  until  within  the  last  decade.  They  had  supreme  confidence 
in  the  power  of  the  States  to  legislate  in  harmony  with  and  for  the  best 
interests  of  the  country  as  a  whole.  If  their  confidence  was  unfounded,  if 
we  must,  with  the  further  development  of  our  industries,  our  commerce, 
and  our  political  institutions,  fall  back  upon  the  strong  arm  of  the  Federal 
Government  to  support  and  sustain  us,  then  must  the  political  signifi- 
cance and  importance  of  our  State  boundaries  become  less  with  time  and 
the  splendid  conception  of  local  self-government,  which  has  guided  and 
restrained  our  lawmakers  heretofore,  be  proven  a  failure. 

The  vital  question,  therefore,  which  confronts  the  American  people 
to-day  is,  whether  our  dual  system  of  government,  in  the  form  conceived 
and  established  by  its  founders,  is  ultimately  to  be  wrecked  upon  the 
rock  of  a  highly  centralized  bureaucratic  Federal  authority,  or  whether 
it  can  endure  in  the  form  originally  created  as  the  nation  moves  on  to 
greater  heights  of  development  in  industry,  in  wealth,  in  power,  and  in 
international  influence. 

Here,  then,  let  us  renew  that  high  resolve,  uttered  upon  this  spot  forty- 
four  years  ago,  by  the  immortal  Lincoln,  that  this  Government  "of  the 
people,  by  the  people,  and  for  the  people,"  in  the  form  in  which  it  was 
conceived  by  the  founders  of  the  Republic,  in  the  form  that  has  made 
us  superior  to  all  governments  in  the  past,  in  the  form  for  which  brave 
men  laid  down  their  lives  upon  this  and  many  other  historic  battlefields, 
shall  not  perish  from  the  earth. 


FROM  AN  ADDRESS   BY   REPRESENTATIVE   J.   S. 
WILLIAMS,   ON   "FEDERAL  USURPATION"1 

EVERY  governmental  abuse  is  based  upon  some  plea  or  pretext  and  the 
usurpation  of  power  by  government  is  generally  based  upon  "necessity," 
the  tyrant's  plea.  This  real  or  fancied  necessity  generally  grows  out  of 
war.  This  has  been  especially  true  with  regard  to  legislative  and  execu- 
tive usurpations  by  our  Federal  Government.  Real  or  fancied  war 
necessities  are  and  ever  will  remain  the  chief  pretexts  for  Federal  usurpa- 
tion. Amidst  the  universal  plaudits  which  he  has  received  and  deserved, 
there  are  few  people  left  ungracious  enough  to  give  sufficient  emphasis 
to  the  part  which  Abraham  Lincoln  and  his  Cabinet  had  in  changing 
the  spirit,  if  not  the  form,  of  the  American  Government.  The  doctrine 

1  Delivered  before  the  American  Academy  of  Social  and  Political  Science.  Reported 
in  the  Congr.  Record,  June  3,  1908. 


782  AMERICAN   FEDERAL   GOVERNMENT 

of  "war  powers  "  came  into  being,  and  after  war  had  passed  and  peace 
had  come  the  usurpations  following  from  the  exercise  of  the  so-called 
"war  powers  "  furnished  precedence  for  their  continuance  and  for  other 
usurpations  like  them.  As  has  always  been  said  inter  arma  leges  silent; 
there  are  undoubtedly  certain  powers  which  have  been  recognized  to 
belong  to  all  governments  with  forces  operating  during  war  in  the  field 
and  in  the  enemy's  country  beyond  those  which  are  conceded  to  the  same 
governments  at  peace  and  at  home. 

During  the  war  between  the  States  the  Executive  first  asserted  and 
Congress  afterwards  attempted  to  confer  upon  the  Executive  the  right 
to  suspend  habeas  corpus,  not  only  in  the  territory  which  was  within  the 
boundaries  of  the  Confederacy,  but  in  the  States  which  had  remained 
in  the  Union.  Things  went  so  far  that  the  writ  of  habeas  corpus  was 
suspended  on  the  order  of  a  lieutenant-general,  acting  under  general 
authority  conferred  by  proclamation  of  the  President. 

The  Secretary  of  War  and  the  Secretary  of  State,  on  bare  orders,  based 
upon  no  affidavit  even,  much  less  indictment,  arrested  and  confined 
citizens  of  the  loyal  States  and  spirited  them  off  to  prison.  Federal 
marshals  and  police  did  the  same  thing.  All  this,  too,  prior  to  the  act 
of  March  3,  1863,  whereby  Congress  attempted  to  confer  the  power  and 
the  right  to  suspend  the  writ  of  habeas  corpus,  a  power  vested  by  the 
Constitution,  according  to  all  judicial  construction,  in  Congress  alone. 
Under  a  proclamation  of  the  President,  amongst  the  classes  to  be  thus 
treated  were  described  those  who  "magnified  the  resources  of  the  enemy" 
and  those  "inflaming  party  spirit  among  ourselves."  It  seems  almost 
incredible  now  that  men  could  have  been  taken  out  of  their  beds  at  night 
and  carried  away  to  prison,  without  even  affidavits,  by  ignorant  marshals, 
who  determined  for  themselves  the  questions  whether  or  not  those  seized 
and  imprisoned  were  guilty  of  disloyalty,  especially  when  disloyalty  was 
defined  in  such  vague  terms  as  "magnifying  the  resources  of  the  enemy," 
"underrating  our  own,"  or  "inflaming  party  spirit  amongst  ourselves." 

Fortunately  for  the  future  of  our  republican  institutions,  in  December, 
1866,  in  the  case  of  ex-parte  Milligan  (4  Wallace)  the  Supreme  Court 
pronounced  these  proclamations  of  the  President  unconstitutional  and 
the  act  of  Congress  so,  except  in  so  far  as  it  was  in  its  provisions  "con- 
fined to  the  locality  of  actual  war  "  and  not  elsewhere,  and  to  places 
"where  courts  are  not  open." 

There  are  those  who  believe  that  the  branch  of  the  Government  most 
guilty  in  the  field  of  Federal  usurpation  is  the  judiciary.  This  is  not 
true.  Upon  the  whole,  the  courts  have  been  a  bulwark  of  protection  for 
the  natural  rights  of  the  individual  and  for  the  reserved  rights  of  the 
States.  Judicial  usurpations  which  have  been  successfully  accomplished 
have  not  been  a  tithe  of  those  which  have  been  unsuccessfully  attempted 
by  the  Federal  Legislature  or  the  Federal  Executive.  The  Ku  Klux 
act,  which  would  have  carried  the  Federal  authority  into  every  man's 


CENTRALIZATION  783 

home  within  the  States  in  the  enforcement  of  ordinary  criminal  law; 
the  civil  rights  act,  which  usurped  to  the  General  Government  nearly 
all  of  the  police  powers  of  a  State  and  the  control  of  the  social  affairs 
of  the  citizen,  are  illustrations  of  attempted  Federal  usurpations  set  aside 
by  the  courts. 

During  the  period  immediately  after  the  war  between  the  States  Con- 
gress fought  most  viciously  against  the  courts,  frequently  attempting 
by  acts  of  Congress,  and  sometimes  successfully,  to  prevent  appeals  to 
the  Supreme  Court  of  the  United  States.  A  book  might  be  written,  and 
a  very  interesting  one,  too,  upon  usurpations  flowing  out  of  the  civil  war 
and  out  of  the  supposed  necessities  of  a  reconstruction  of  the  Southern 
States. 

Some  of  the  usurpations  that  owe  their  real  existence  to  the  civil  war 
still  remain  to  plague  us ;  for  example,  the  legal  tender  case.  The  Con- 
stitution deprived  the  States  of  a  power  which  was  inherent  in  their 
sovereignty,  but  which  had  been  found  to  be  greatly  abused  —  to  emit 
letters  of  credit  and  issue  paper  currency.  Hamilton  himself  contended 
that  not  only  was  this  power  not  granted  to  the  Federal  Government, 
but  that  in  spirit  it  was  actually  prohibited  to  it.  Nobody  ever  did,  or 
does  now,  doubt  the  right  of  the  Government  to  issue  a  note  as  evidence 
of  indebtedness  when  it  has  not  the  money  wherewith  to  pay.  But 
nobody  up  to  the  civil  war  had  ever,  for  one  moment,  dreamed  that  the 
Government  had  a  right  to  levy  a  forced  loan  upon  the  people  by  making 
its  notes  a  legal  tender  for  the  payment  of  debt.  This  legacy,  however, 
is  not  justly  attributable  to  the  judiciary,  but  to  the  President  and  the 
Senate.  You  are  familiar  with  the  manner  in  which  this  result  was  ar- 
rived at.  After  a  first  decision  by  the  court  declaring  the  legal-tender 
act  unconstitutional,  the  addition  of  a  new  judge  to  the  number  on  the 
bench  and  the  appointment  of  another  new  judge  to  fill  a  vacancy, 
meantime  caused  by  death  on  the  old  bench,  accomplished  a  reversal. 

It  requires  no  imagination,  but  a  plain  survey  of  the  field  only,  to 
realize  what  an  immense  capitalistic  and  centralizing  influence  the 
judicial  construction  into  the  Constitution  of  this  power  which  was 
never  granted  —  the  power  to  make  of  Government  notes  a  legal  tender 
to  take  the  place  of  gold  and  silver  —  has  vested  in  the  Federal  Govern- 
ment. 

John  Marshall,  in  the  case  of  McCullough  against  Maryland,  had 
early  in  the  history  of  the  country  upheld  the  power  of  the  Federal  Gov- 
ernment to  charter  a  national  bank  of  issue,  although  a  proposition  in 
the  Constitutional  Convention  to  confer  such  power  had  been  expressly 
offered  and  expressly  voted  down.  The  opinion  in  the  case  upheld  the 
bank  as  a  "fiscal  agency"  of  the  Government,  and  as  such  it  was  declared 
that  it  could  not  be  taxed  by  a  State,  because  such  a  power  of  taxation 
would  carry  with  it  to  one  sovereignty  the  power  to  destroy  the  fiscal 
agencies  of  another.  And  yet,  long  afterwards,  when  the  law  to  estab- 


784  AMERICAN   FEDERAL   GOVERNMENT 

lish  the  present  national  banking  system,  in  order  to  strengthen  the  credit 
of  the  Government  and  to  increase  the  price  of  its  bonds,  carried  a  pro- 
vision to  tax  State  bank  issues  10  per  cent,  it  being  admitted  that  this 
tax  was  levied  not  for  the  purpose  of  revenue,  but  for  the  purpose  of 
stamping  State  bank  issues  out  of  existence,  the  court  cavalierly  flung 
aside  its  former  doctrine  that  one  sovereignty  could  not  tax  out  of  ex- 
istence the  fiscal  agencies  or  chartered  instrumentalities  of  another,  and 
held,  in  substance,  by  sustaining  the  constitutionality  of  the  10  per  cent 
tax,  that  it  could.  The  power  to  " issue  'money'  directly  to  the  people" 
in  the  shape  of  legal-tender  Treasury  notes,  and  the  power  to  confine 
the  function  of  bank-note  issuance  to  national  banks  and  to  monopolize 
its  regulation  have  together  given  to  the  Federal  Government  that  power 
and  influence  over  finance  and  business  which  make  other  usurpations, 
whenever  all  three  branches  of  the  Federal  Government  are  desirous  of 
making  them,  irresistible  by  the  States  or  by  the  people  thereof. 

The  early  assertion  by  Congress  of  the  power  to  levy  import  duties 
not  simply  as  taxes  for  raising  revenue,  but  for  the  admitted  purpose  of 
hothousing  into  prosperity  at  the  common  expense  such  industries  as, 
in  the  opinion  of  Congress,  it  is  for  the  common  interest  and  the  general 
welfare  to  hothouse,  has  given  a  whip  handle,  if  not  a  mastery,  over  the 
manufacturing  interests  of  the  country  to  the  Federal  Government.  The 
control  of  finance  and  of  manufactures  thus  usurped,  together  with  the 
immense  powers  actually  vested  by  the  Constitution  itself  in  the  Federal 
Government,  under  the  treaty-making  clause  and  under  the  interstate 
commerce  clause,  constitute  our  Government  of  to-day  a  Government 
stronger  than  any  that  Hamilton  and  his  compeers  ever  dared  attempt 
to  inaugurate  in  the  Constitutional  Convention  —  stronger  than 
Marshall  even  ever  dreamed  of  construing  or  wanted  to  construe  into 
existence. 

This  is  true  even  when  you  consider  alone  the  real  power  of  Congress 
under  the  interstate  commerce  clause  when  exercised  honestly  and  gen- 
uinely for  the  sole  constitutional  purpose  of  the  regulation  of  interstate 
commerce.  When  you  consider  the  cases  where  this  power  has  been 
abused  as  a  means  to  accomplish  ends  not  contemplated  by  it,  this  con- 
clusion is  stronger. 

What  has  been  actually  accomplished,  however,  by  legislation  regulat- 
ing, or  pretending  to  regulate,  interstate  commerce  is  nothing  compared 
to  what  is  proposed.  A  brilliant  young  Senator  from  Indiana  proposes  to 
control  child  labor  within  the  States,  through  the  interstate  commerce 
clause,  by  denying  to  products  manufactured  within  a  State  interstate 
transportation  when  produced  by  child  labor,  though  employed  in  ac- 
cordance with  the  laws  of  the  State  of  their  manufacture.  If  Congress 
have  power  to  do  this,  it  has  also  power  to  say  that  no  products  shall 
be  carried  in  interstate  commerce  if  produced  where  labor  is  employed 
for  longer  than  eight  hours  a  day.  If  it  have  the  right  to  do  either,  it  has 


CENTRALIZATION  785 

an  equal  right  to  say  that  no  man  or  woman  shall  travel  upon  an  inter- 
state passenger  ticket  who  has  been  divorced  according  to  State  divorce 
laws  which  do  not  meet  with  the  approbation  of  Congress. 

Early  in  the  history  of  the  country  the  story  is  told  that  the  House 
of  Representatives  sent  to  the  Senate  a  bill  to  regulate  and  work  certain 
copper  mines,  and  Mr.  Jefferson,  in  his  playful  but  philosophical  man- 
ner, said  that  their  method  of  deriving  from  the  Constitution  their  power 
was  about  this :  Congress  has  a  right  to  provide  for  the  common  defense ; 
ships  are  necessary  for  the  common  defense;  copper  is  necessary  to 
finish  ships ;  mines  are  necessary  to  be  worked  in  order  to  get  copper, 
and,  therefore,  Congress  has  a  right  to  work  copper  mines  within  the 
States;  and  added  that  anybody  who  had  ever  followed  the  reasoning 
in  "the  house  that  Jack  built  "  could  readily  understand  and  would  be 
convinced  by  the  argument. 

By  parity  of  Indiana  Senatorial  reasoning  Congress  might  enact  a 
force  bill  under  the  interstate  commerce  clause,  basing  it  upon  the  right 
of  Congress  to  say  what  should  or  should  not  enter  into  interstate  com- 
merce as  freight  or  as  passengers.  It  might,  therefore,  say  that  any  man 
elected  to  Congress  unless  elected  in  accordance  with  a  certain  law 
passed  by  Congress,  should  not  be  permitted  to  travel  in  interstate  com- 
merce, and  therefore  should  not  be  permitted  to  leave  his  State  and 
come  to  Washington  to  take  his  seat  as  a  Representative.  I  know,  of 
course,  that  the  reductio  ad  absurdum  is  not  the  safest  of  arguments,  but 
it  sometimes  makes  things  ridiculously  clear. 

Add  to  all  this  power  over  finance,  banking,  commerce,  manufactures, 
the  immense  spread  of  the  activities  of  the  Department  of  Agriculture. 
It  is  furnishing  seed  to  the  farmers,  it  has  established  a  stock  farm  in 
one  of  the  States  for  the  purpose  of  breeding  "a  standard  national 
horse,"  and  the  right  is  about  being  asserted  of  entering  into  a  State, 
with  or  without  its  consent,  to  construct  roads  not  only  between  the 
States,  but  within  the  States.  With  their  construction  will  come  the 
assertion  of  the  right  to  control,  if  not  to  police  them. 

The  undoubted  right  of  Congress  to  so  regulate  interstate  commerce 
as  to  stop  the  spread  of  disease  by  it,  from  State  to  State,  amongst  men, 
animals,  or  plants,  is  as  yet  being  driven  only  to  its  utmost,  but  will 
finally  be  driven  beyond  its  utmost,  legitimate  application.  That  the 
operations  of  the  great  Department  of  Agriculture  are  beneficent  there 
can  be  no  doubt.  The  few  millions  appropriated  each  year  for  that 
Department  accomplish  more  good  than  ten  times  as  many  millions 
appropriated  for  some  other  purposes. 

But  it  does  not  follow  that,  because  a  given  work  is  wise  and  beneficent 
the  Federal  Government  has  the  right,  or  even  by  amendment  to  the 
Constitution  should  have  the  right,  to  do  it,  nor  does  it  follow  that  be- 
cause the  Federal  Government  does  beneficently  carry  it  on,  that  it  could 
not  have  been  carried  on  quite  as  beneficently  by  the  States,  if  the  Fed- 

50 


786  AMERICAN   FEDERAL   GOVERNMENT 

eral  Government  had  stayed  out  of  the  business.  In  connection  with 
agriculture,  for  example,  I  for  one  believe  that  if  the  Federal  Govern- 
ment had  never  undertaken  to  do  anything  at  all  with  it  the  general 
condition  of.  agriculture  in  the  country  would  yet  have  been  quite  as 
good  as  it  is,  perhaps  better,  because  then  the  States  would  have  estab- 
lished magnificent  agricultural  departments,  with  experimental  stations, 
training  schools,  and  all  that ;  wo'uld  have  vied  with  one  another,  from 
New  York  to  California,  in  doing  the  work,  each  actuated  by  the  motive 
of  excelling  others  in  the  prosperity  to  be  brought  about  by  improving 
the  basic  art  —  agriculture.  Those  taught  to  lean  upon  others  for  sup- 
port forget  how  to  lean  upon  their  own  backbones. 

The  Department  wants  the  Federal  Government  to  go  further  yet 
and  to  inaugurate  and  maintain  in  the  States  technical,  agricultural, 
and  manual  training  schools,  with  what  measure  of  Federal  control  it 
has  not  thus  far  seen  fit  to  indicate. 

Take,  as  the  next  illustration,  the  gradual  assumption  of  power  to 
the  Federal  Government  in  connection  with  works  of  irrigation.  That 
Congress  has  a  right  to  irrigate  the  public  lands  so  as  to  make  them  val- 
uable and  so  that  the  proceeds  of  their  sale  may  inure  to  the  interest  of 
all  the  people  there  can  be  no  doubt.  Growing  out  of  this  right  Congress 
has  taken  hold  of  the  work  of  irrigation  everywhere,  on  private  lands  as 
well  as  on  public  domain.  It  has  added  to  that  the  kindred  subject  of 
drainage,  because,  undoubtedly,  if  Congress  have  power  to  put  water 
on  lands  outside  of  the  public  domain,  it  has  an  equal  power  to  take 
water  off  of  lands  outside  of  the  public  domain.  The  departmental 
work  does  not  seem  to  have  received  even  a  momentary  check  from  the 
decision  of  the  Supreme  Court  in  the  great  case  of  Kansas  against  Colo- 
rado, in  206  U.  S.,  where  the  court  says,  after  examining  in  detail  all  the 
enumerated  grants  of  power  to  Congress,  that  "no  one  of  them,  by  im- 
plication, refers  to  reclamation  of  arid  lands." 

In  some  cases  where  Congress  has  usurped  power  and  where  the 
courts  have  subsequently  set  aside  the  acts  of  Congress  as  unconstitu- 
tional the  wrongs  perpetrated  under  the  acts  have  been  perpetuated. 
Retaining  in  the  Federal  Treasury  the  money  received  under  the  "cap- 
tured and  abandoned  property  act  "  is  an  instance  in  point.  After  the 
general  amnesty  proclamation  of  the  President,  it  became  evident  that 
the  money  lying  in  the  Treasury  from  the  sale  of  "captured  and  aban- 
doned property,"  would  have  to  be  restored  to  the  Southern  people  who 
had  owned  it.  A  rider  on  an  appropriation  bill  of  July  12,  1870,  under- 
took to  annul,  and  Congress,  by  refusing  to  appropriate  the  money  out 
of  the  Treasury,  practically  has  annulled  the  subsequent  decision  of 
the  court  to  this  effect.  Millions  of  dollars  are  now  lying  in  the  Treasury 
accumulated  there  under  this  act  of  Congress,  which  the  court  subse- 
quently held  to  be  a  special  fund  to  be  repaid  to  the  owners  of  the  prop- 
erty. There  is  no  way  of  getting  it  out,  however,  because,  as  the  court 


CENTRALIZATION  787 

properly  says,  it  requires  an  act  of  Congress  to  appropriate  money  once 
covered  into  the  Treasury  out  of  it  again.  Here  is  a  case  where  Federal 
legislation  has  been  adjudged  invalid  and  unconstitutional,  and  yet 
where  the  people  injured  by  the  usurpation  have  suffered  the  effect  of 
it  until  they  died  and  where  their  heirs  or  assignees  are  suffering  yet. 
The  money  in  the  Treasury  derived  from  the  cotton  tax,  and  still  kept 
there,  is  another  instance  almost  in  point. 

I  have  referred  to  the  war  between  the  States  as  a  source  of  much 
Federal  usurpation.  The  Spanish-American  war  might  be  referred  to  in 
the  same  connection.  The  Constitution  of  the  United  States  provides 
for  the  separation  of  the  judicial,  executive,  and  legislative  func- 
tions. In  the  Panama  Zone  the  Executive  alone  has  been  and  is  exercis- 
ing not  only  executive,  but  legislative  functions.  When  a  resolution  was 
introduced  into  Congress,  and  passed  by  it,  asking  "under  what  authority 
of  law  "  the  President  was  doing  this,  the  answer  came  that  it  was 
under  authority  of  certain  acts  of  Congress,  their  dates  being  recited, 
and  under  authority  of  a  treaty  with  the  so-called  "  Republic  of  Panama," 
as  if  either  an  act  of  Congress  or  a  treaty  could  confer  upon  the  Execu- 
tive the  right  to  exercise  judicial  or  legislative  powers,  in  the  teeth  of 
an  express  constitutional  prohibition  of  their  consolidation. 

Our  experiment  with  schemes  of  crown  colonialism  in  the  Philippines 
now,  and  for  a  while  in  Porto  Rico,  was  so  stupendously  alien  to  the 
spirit  of  all  our  institutions  as  to  be  at  once  horrible  and  amusing.  De- 
partment law  clerks  sent  out  as  proconsuls  are  learning  in  the  Philip- 
pines and  in  Cuba  to-day  lessons  which  will  return  to  vex  the  Republic 
at  home.  You  need  not  expect  that  what  is  learned  there  will  be  for- 
gotten here.  In  Rome  the  Imperator  was  first  a  field  officer  in  Gaul  or 
Asia  or  in  other  conquered  territory.  Then  there  came  the  exercise  of 
powers  as  Imperator  in  Rome  itself.  Marius  and  Sulla  as  well  as  Julius 
Caesar  were  virtually  emperors  long  before  Augustus  Caesar  had 
founded  what  we  now  call  the  " Roman  Empire." 

Peace  is  important  to  all  peoples.  I  sometimes  think  that  two-thirds 
of  the  energies  of  all  the  statesmanship  in  the  world  might  be  profitably 
employed  in  the  maintenance  of  peace  throughout  the  world.  But  if 
important  to  other  peoples,  it  is  doubly  so  to  us  with  our  peculiar  dual 
government,  the  balance  of  which  is  so  nicely  adjusted  and  so  vital  and 
which  is  always  shaken  by  the  sequelae  of  war.  We  never  know  before- 
hand what  these  sequelae  are  going  to  be.  You  hear  much  of  "the 
horrors  of  war."  The  greatest  of  all  these  horrors  is  the  murder  of 
free  institutions,  and  especially  of  local  self-government,  the  only  pos- 
sible field  for  development  of  individual  manhood. 

The  spirit  of  absolutism  necessary  to  crown  colonialism  will  be  found 
to  be  contagious.  Accustomed  to  it  in  all  its  spirit  in  our  daily  adminis- 
tration of  colonial  affairs,  the  public  will  gradually  become  accustomed 
to  the  insidious  introduction  of  its  features  at  home.  No  free  govern- 


788  AMERICAN  FEDERAL   GOVERNMENT 

ment  can  successfully  control  alien  and  unassimilable  peoples,  except 
by  the  violation  of  the  fundamental  principles  of  free  government  itself. 
Our  forefathers  recognized  this  when  they  placed  the  Indian  tribes  on 
the  footing  of  foreigners,  to  be  dealt  with  by  treaty. 

The  mailed  fist,  well  exercised  to  its  task,  is  dangerous,  ultimately,  to 
liberty  of  citizens  much  more  than  it  is  even  to  subject  peoples.  The 
system  will  some  day  drag  down  England  herself  by  the  exhaustion  of 
her  sons  and  her  revenues  in  maintaining  her  hold  upon  India.  The 
inauguration  by  us  of  the  system  in  the  Philippine  Islands,  unless  once 
we  have  the  good  sense  to  put  the  people  of  the  archipelago  upon  their 
own  feet,  teach  them  to  stand  alone,  and  leave  them  standing  after- 
wards, will  have  the  same  effect  for  us  in  the  long  run.  It  is  even  now 
furnishing  the  excuse  of  great  armaments,  naval  and  military,  and  the 
Philippines  constitute  to-day  the  one  point  of  unnecessary  and  unnat- 
ural contact  out  of  which  great  wars  may,  if  not  must,  ensue. 

These  Federal  usurpations  are  going  on  not  only  through  the  Execu- 
tive and  the  legislative,  but,  insidiously,  gradually,  unmarked,  by 
bureaucratic  operation,  through  the  administrative  rulings  of  the  Gov- 
ernment. Charles  I  lost  his  head  and  James  II  his  throne  because  of 
executive  and  administrative  suspensions  of  acts  of  parliament.  The 
American  people  have  become  so  accustomed  to  the  suspension  of  laws 
by  mere  nonenforcement  by  the  Executive,  or  some  obscure  bureaucrat 
under  the  Executive,  that  you  perhaps  could  not  excite  real  alarm  in 
the  minds  of  five  men  by  a  full  recital  of  them  all.  The  Executive  sits 
in  judgment  every  day  on  the  wisdom  of  statutes. 

Mr.  Shaw  while  Secretary  of  the  Treasury  took  money  already  covered 
into  the  Treasury,  and  under  the  guise  of  depositing  it  virtually  loaned 
it  to  such  banks  as  he  chose  without  interest.  This  notwithstanding 
Article  I,  section  9,  clause  7,  of  the  Constitution,  which  says:  "No 
money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  appro- 
priations made  by  law." 

The  same  Secretary  of  the  Treasury  quietly  construed  the  disjunctive 
"or  "  in  a  law  passed  by  Congress  to  have  the  meaning  of  the  conjunc- 
tive "and,"  so  that  when  Congress  had  by  law  said  that  those  receiving 
deposits  of  public  money  —  not  deposits  of  money  already  covered  into 
the  Treasury,  remember  —  but  deposits  of  money  collected  from  internal 
revenues  and  not  yet  covered  into  the  Treasury  —  should  deposit  as 
security  United  States  bonds  "and"  other  bonds,  that  it  meant  "or" 
other  bonds.  Upon  this  he  quietly  issued  a  ukase  to  the  effect  that  he 
would  receive  such  securities  as  "complied  with  the  savings-bank  laws 
of  New  York  and  Massachusetts,"  and  would  dispense  with  the  deposit 
of  United  States  bonds  altogether,  in  his  discretion.  The  discussions  in 
Congress  at  the  time  that  the  law  under  whose  alleged  authority  he 
acted  was  passed  show  the  reasons  for  the  original  act.  People  forget 
now  that  there  was  a  time  when  United  States  bonds  were  not  at  par. 


CENTRALIZATION  789 

It  was  wise,  therefore,  upon  the  part  of  Congress  to  provide  originally 
that  the  Secretary  of  the  Treasury  might  require  other  security  as 
additional  to  that  of  national  bonds  in  order  that  the  security  might 
always  be  equal  in  par  value  to  the  money  loaned.  I  need  not  dwell 
upon  the  total  torturing  of  the  original  meaning  by  the  Secretary's 
decision.  Secretary  Cortelyou  ruled  later  on  that,  under  the  provisions 
of  a  law  permitting  the  issuance  of  Treasury  certificates  "when  neces- 
sary to  meet  public  expenditures,"  he  was  enabled  to  issue  these 
certificates  to  get  money  in  order  to  help  the  banks  by  free  loans  in 
a  panic. 

An  administrative  board  of  the  United  States,  engaged  in  the  business 
apparently  of  seeing  to  it  that  due  "protection  "  is  rendered  to  "Ameri- 
can industries,"  and  finding  that  there  was  no  tariff  on  frog  legs,  which 
were  being  imported  into  our  territory  to  the  detriment  of  the  great 
American  industry  of  bullfrog  raising,  gravely  ruled  that  they  were  tax- 
able under  the  clause  which  put  an  import  duty  upon  dressed  poultry. 

What  has  been  accomplished  in  the  way  of  Federal  usurpation  by 
the  National  Legislature  and  Executive  and  either  set  aside  by  judicial 
authority  or  left  to  stand  and  stay  to  plague  us  yet  does  not  constitute 
a  tithe  of  what  we  are  to  expect  if  some  recent  utterances  by  great  and 
popular  men  are  to  be  taken  at  their  face  value. 

The  President  in  his  Harrisburg  speech,  delivered  in  the  month  of 
October,  1906,  says:  "In  some  cases  this  governmental  action  must  be 
exercised  by  the  States.  In  others  it  has  become  increasingly  evident 
that  no  sufficient  State  action  is  possible,  and  that  we  need  through 
Executive  action,  •  through  legislation,  and  through  judicial  interpreta- 
tion and  construction,  to  increase  the  power  of  the  Federal  Government. 
If  we  fail  thus  to  increase  it  we  show  our  impotency." 

Mark  the  language.  "We  need  —  that  is  the  old  familiar  tyrant's 
plea  —  necessity."  To  do  what?  To  "increase"  the  "power  of  the 
Federal  Government."  The  very  verb  "increase"  is  the  President's 
word  and  is  a  confession  that  the  Federal  Government  does  not  now 
possess  the  powers  desired  to  be  annexed  —  a  confession,  therefore,  of 
deliberately  contemplated  usurpation.  And  to  increase  power  how? 
Not  by  amending  the  Constitution,  even  though  we  had  to  amend  the 
amendatory  clause  in  order  to  make  the  work  of  amendment  easier,  but 
"by  Executive  action,"  and,  "by  legislation,"  both  of  them  necessarily, 
if  there  be  an  "increase  "  of  power,  violative  of  the  constitutional  limi- 
tations upon  "Executive  action,"  and  upon  Federal  legislation.  It  can 
not  be  too  often  repeated  that  this  is  true,  or  else  the  word  "increase  " 
would  not  have  needed  to  be  used.  And  third,  and  more  insidiously 
still,  by  express  executive  injunction  there  should  be  and  must  be 
"increase  "  by  judicial  interpretation  and  construction.  By  the  Soul 
of  all  Insidious  Revolution !  Mark  the  quoted  words  well  in  your 
memories ! 


790  AMERICAN   FEDERAL   GOVERNMENT 

Secretary  Root,  in  his  New  York  speech  in  December,  1906,  evidently 
following  up  a  deliberately  laid  scheme  and  purposely  supplementing 
the  President's  speech  in  Harrisburg  in  October  of  that  year,  uses  this 
language:  "Sooner  or  later  constructions  will  be  found  to  vest  power 
where  it  will  be  exercised,  in  the  National  Government."  Secretary 
Root  is  a  lawyer.  He  knows  what  the  verb  "vest  "  means.  His  lan- 
guage is  to  "vest  power."  "Vest"  means  to  give  —  to  deposit  a  new 
power,  not  to  apply  an  existing  one  to  new  conditions.  His  ground  and 
excuse  and  reason  for  "vesting  "  it  is  that  it  must  be  "placed  "  where  it 
will  be  "exercised."  The  necessary  inference  is  that  it  is  now  vested  or 
placed  in  the  States  and  that  they  ought  to  be  divested  of  it,  because  they 
do  not  "exercise"  it.  His  method  of  "vesting"  power  again  is,  like 
the  President's  method  of  "increasing"  it,  not  by  amendment  to  the 
Constitution,  whereby  the  people  themselves  can  redistribute  the  powers, 
which  are  theirs,  and  which  they  originally  distributed  between  our  dual 
sovereignties,  but  by  "  constructions "  which  are  to  be  "found! " 
"Found  "  by  whom?  By  the  very  men  who  are  to  exercise  the  powers 
construed  into  being  by  being  "found." 

An  American  citizen  does  not  take  an  oath  of  allegiance  to  any  gov- 
ernment. His  oath  of  allegiance  is  to  the  Constitution.  Every  officer 
who  serves  the  Federal  Government,  from  the  President  down,  whether 
he  be  Cabinet  officer,  judge,  Senator,  or  Representative,  takes  this  oath. 
It  is  now  proposed  that  the  Executive  officers  of  the  Federal  Govern- 
ment shall  "  vest "  power  in  themselves  "  by  construction,"  to  be 
"found,"  and  that  they  shall  "increase  "  their  power  "through  Execu- 
tive action."  Think  of  it !  And  yet  in  all  this  broad  land  no  hint  or 
suggestion  of  impeachment ! 

This  method  of  amending  the  Constitution  does  not  require  a 
two-thirds  majority  in  each  House  nor  three-fourths  of  the  States  in 
confirmation  of  it.  It  is  easy.  It  requires  nothing  but  momentary 
forgetfulness  of  an  oath  registered  in  the  chancel  of  God.  It  is  not 
dangerous.  It  may,  perhaps,  even  be  applauded,  if  the  thing  sought 
to  be  done  be  popular  with  the  populace. 

What  is  more,  the  President  proposes  to  "make  good"  —a  phrase 
he  is  fond  of.  I  have  not  time  to  refer  to  all  the  circumstantial  evidence 
in  support  of  this  statement,  but  run  over  in  your  minds  recent  history 
-  Root's  part  in  it  in  the  Philippines ;  the  acts  of  our  proconsular 
agents;  the  present  condition  of  things  in  the  Canal  Zone,  and  the 
frequent  chidings  by  the  President  of  the  Federal  judges  where  they  do 
not  decide  to  suit  him,  showing  a  purpose  of  bending  and  warping  the 
personnel  of  the  Supreme  and  other  Federal  courts  to  an  incorporation 
of  his  policies,  where  unconstitutional,  by  "judicial  construction,"  as  a 
part  of  the  authority  of  the  Federal  Government.  No  lawyer  not  enter- 
taining an  opinion  favorable  to  these  policies  can  go  upon  the  bench 
unless  he  succeeds  in  fooling  the  President  or  unless  the  President  fools 


CENTRALIZATION  791 

himself  as  to  his  legal  opinions.  Daniel  Webster  was  right  when  he  said 
that  "  the  judicial  power  can  not  stand  for  a  long  time  against  the  Execu- 
tive power."  The  present  President  has  already  during  his  tenure  of 
office  appointed  one-third  of  the  Supreme  Court  and  over  one-half  of 
the  subordinate  Federal  judges. 

Judges  on  the  district  and  circuit  bench,  although  they  hold  their 
offices  " during  good  behavior,"  feel  ambition  like  other  men  and  would 
like  to  fill  vacancies  upon  the  Supreme  Bench,  as  they  arise.  They  can 
pursue  no  course  better  calculated  to  bring  about  that  result  than  to 
let  it  be  known  by  their  decisions  as  subordinate  judges  that  they  share 
the  President's  opinions,  and  among  others,  perhaps  chiefly,  his  opinion 
of  the  rightfulness  of  " increasing"  Federal  power  "  by  construction." 

The  difficulty  of  amending  the  Constitution  is  the  excuse  at  heart  for 
most  Federal  usurpations,  this  with  and  even  more  than,  the  alleged 
"inaction  of  the  States."  It  was  well  that  at  the  beginning  the  practice 
of  amendment  should  have  been  made  extremely  difficult.  The  thing 
was  to  put  the  Government  upon  its  feet  and  "  teach  it  to  march,"  as 
the  French  say ;  to  stop  experiments  with  the  framework  until  the  peo- 
ple had  become  accustomed  to  it.  We  have  reached  the  point  now  where 
there  are  many  amendments  that  ought  to  be  made  to  the  organic  law; 
first,  because  they  are  highly  beneficent  in  themselves;  secondly,  be- 
cause we  want  to  do  away 'with  this  excuse  and  pretext  of  usurping 
power  "in  order  to  do  good."  It  has  been  said  that  the  Federal  Con- 
stitution can  not  be  amended  except  as  the  result  of  some  great  cata- 
clysm, or  foreign  or  civil  war.  It  is  true  that  it  is  very  difficult,  indeed, 
to  amend  it  —  so  difficult  as  to  be,  under  ordinary  circumstances,  al- 
most impossible.  If  you  have  a  system  which  is  too  difficult  of  legiti- 
mate change,  you  therefore  invite  illegitimate  change  —  or  usurpation. 

Changes  by  amendment.  The  first  clause  in  the  Constitution  that 
ought  to  be  amended  is  the  amendatory  clause  itself.  Amending  the 
Constitution  ought  to  be  difficult,  but  not  so  difficult  as  it  is  now.  It 
would  seem  that  to  require  a  majority  of  10  per  cent  over  one-half  in 
each  House,  voting  for  two  successive  Congresses  to  submit  an  amend- 
ment, would  be  a  requirement  sufficiently  difficult  in  the  initiative. 
This  would  require  at  present  51  Senators  and  215  Congressmen,  and 
as  that  vote  would  be  required  in  two  successive  Congresses,  the  scheme 
would  give  the  people  time  to  think  between  the  two  Congresses  and 
an  opportunity  to  pass  upon  the  proposed  amendments  tentatively 
when  they  came  to  elect  the  Members  of  first  Congress  after  the  one 
proposing  the  amendment.  If  to  this  were  added  that  the  proposed 
amendment  should  not  become  a  part  of  the  fundamental  law  unless 
it  shall  be  ratified  both  by  a  majority  of  the  people  and  by  a  majority 
of  the  States,  the  practice  of  amendment  would  not  be  rendered  so  easy 
as  to  lead  to  many  propositions  of  amendment,  and  still  would  be  made 
easy  enough  to  encourage  a  hope  upon  the  part  of  those  who  wish  to 


792  AMERICAN   FEDERAL   GOVERNMENT 

preserve  our  institutions,  that  they  need  not  be  destroyed  because  of  the 
very  organic  difficulty  of  changing  them. 

//  is  not,  however  —  note  ye  well  —  in  this  way  that  either  President 
or  Secretary  proposes  to  go  about  the  introduction  of  reforms  or  a  re- 
distribution of  governmental  powers.  It  is  not  proposed  that  it  shall 
be  done  deliberately  by  amendment  upon  the  initiative  of  the  National 
Legislature  and  by  the  confirmation  of  the  people  in  the  States,  but  that 
powers  are  to  be  " vested"  in  the  Federal  Government,  and  the  Federal 
Government,  and  that  Federal  powers  are  to  be  " increased"  by  " con- 
structions," which  are  "to  be  found;"  and  by  "Executive  action"  and 
"by  legislation"  and  by  a  judicial  reading  into  the  instrument  of  that 
which  is  confessed,  by  the  very  language  used,  not  to  have  been  written 
into  it. 

There  has  been  a  recrudescence  of  federalism  here  lately  alarming 
in  its  proportions.  We  begin  to  hear  a  great  deal  once  more  about 
"inherent  powers,"  about  "powers  ordinarily  exercised  by  sovereign 
nations,"  and  therefore,  as  it  is  claimed,  to  be  exercised  by  the  Federal 
Government  and  about  affairs  of  "national  concernment."  This  latter 
phrase  would  include  murder,  theft,  divorce  —  almost  everything  per- 
taining to  morals  or  health.  The  President  talks  about  court  decisions 
which  have  left  "vacancies,"  "blanks"  between  Federal  and  State 
powers,  and  wants  these  vacancies  and  blanks  filled,  occupied  "by 
Executive  action,"  by  "legislative  action,"  and  "by  judicial  construc- 
tion." How  absurd !  No  decision  of  any  court  could  possibly  have 
ever  left  a  blank  or  a  vacancy  between  the  powers  to  be  exercised  by 
the  Federal  Government  and  the  powers  to  be  exercised  by  the  States. 
The  moment  the  court  decides  that  a  given  power  is  not  one  of  those 
granted  to  the  Federal  Government,  either  expressly  or  by  proper  and 
honest  implication,  that  moment  the  court  has  decided  e  converse  that 
it  is  a  power  reserved  to  the  States  or  to  the  people  by  virtue  of  the  tenth 
amendment. 

Much  has  been  written  about  what  is  meant  by  the  phrase  "or  to  the 
people"  in  this  amendment.  In  my  mind  it  is  clear;  the  powers  not 
delegated  are  reserved  either  to  the  States  or  "to  the  people  "/or  redis- 
tribution, as  they  may  choose,  by  amendment  of  the  Constitution.  Both 
State  and  Federal  governments  are  their  servants,  not  their  masters. 
The  people  of  the  United  States,  acting  within  their  respective  States, 
have  reserved  the  right  of  further  distribution  of  governmental  powers. 
Again,  individuals  have  also  certain  natural  and  inalienable  rights,  to 
which  reference  is  likewise  made  in  the  phrase.  These  are  by  nature 
"reserved  to  the  people,"  as  individuals,  as  rights  not  to  be  touched 
either  by  State  or  by  Federal  Government  —  by  any  governmental  or 
political  agency  whatsoever.  That  man  does  not  understand  the  nature 
of  American  institutions  who  thinks  that  arbitrary  and  unlimited  power 
is  vested  anywhere  under  our  system,  even  in  a  majority  of  the  people 


CENTRALIZATION  793 

themselves,  acting  through  any  government  or  of  themselves.  There 
are  things  which  under  our  system  a  majority  can  not  do,  whether  they 
are  right  in  their  opinion  to  be  done  or  not;  thus  high  was  the  sacred- 
ness  of  individuality  held  by  our  forefathers  ! 

I  was  talking  a  moment  ago  about  the  influence  of  the  Executive  over 
the  judiciary  —  quoted  Daniel  Webster  to  the  effect  that  the  judiciary 
"could  not  long  stand  against  the  influence  of  the  Executive"  —  and 
yet  the  spirit  of  the  time  is  such  that  it  has  been  gravely  proposed  in  a 
bill  introduced  in  the  House  to  make  this  influence  still  greater.  That 
bill,  introduced  on  January  4,  1907,  provides  that  the  President  may, 
"  whenever  in  his  judgment  the  public  welfare  will  be  promoted  by  the 
retirement  of  a  judge,"  retire  him  and  appoint  somebody  else,  "with 
the  advice  and  consent  of  the  Senate,"  who  shall  take  his  place  in  the 
exercise  of  judicial  functions.  This  would  give  to  the  President  and 
to  the  Senate  of  the  United  States  absolute  control  over  the  judiciary. 

Our  executive  department  has  carried  the  Root  doctrine  into  its  dealings 
with  Congress.  Where  Congress  will  not  enact  legislation  that  the 
Executive  wants  and  loses  patience  about,  some  administrative  de- 
partment construes  it  to  exist.  This  was  the  case  in  the  graded-age- 
pension  ukase,  issued  by  the  Commissioner  of  Pensions.  A  bill  has 
been  pending  in  Congress  to  accomplish  the  precise  result;  Congress 
would  not  pass  it;  the  Executive,  through  the  Commissioner  of  Pen- 
sions, amid  popular  applause,  construed  it  into  existence. 

When,  later,  it  was  proposed  upon  a  general  appropriation  bill  to 
insert  a  clause  enacting  into  law  the  graded-pension  system  thus  pro- 
mulgated, the  point  of  order  was  raised  that  the  motion  could  not  under 
the  rule  be  entertained  by  the  House  when  a  "general  appropriation 
bill"  was  under  consideration,  because  it  was  "contrary  to  existing 
law."  In  other  words,  that  the  amendment  containing  the  very  lan- 
guage of  the  ruling  of  the  Commissioner  of  Pensions  was  confessedly 
a  change  of  existing  law.  This  point  of  order  was  sustained.  Sustain- 
ing it  was  an  admission  of  the  fact  that  the  Executive  order  had  pro- 
mulgated a  new  law  —  that  a  branch  of  the  executive  had  legislated. 
If,  on  the  contrary,  the  point  of  order  had  not  been  sustained,  then  the 
very  fact  of  the  adoption  of  the  amendment  would  have  been  a  confes- 
sion of  the  fact  that  Congress  needed  to  act  in  order  to  make  law/id  that 
which  by  Executive  order  had  been  promulgated. 

Again,  a  treaty  with  Santo  Domingo  was  pending  before  the  Senate 
of  the  United  States  which  the  Senate  for  a  long  time  refused  to  confirm. 
The  Executive,  being  determined  to  have  its  own  way,  Senate  or  no 
Senate,  did,  as  a  historical  fact,  for  two  years  before  the  ratification  of 
the  treaty  by  the  Senate,  execute  the  terms  of  the  treaty. 

Yet,  again,  the  President  at  one  time  having  a  nomination  of  a  cer- 
tain South  Carolina  negro  named  Crum  pending  in  the  Senate,  and  the 
session  having  come  to  an  end  without  action  on  it,  and  thereupon  an 


794  AMERICAN   FEDERAL   GOVERNMENT 

extraordinary  session  having  been  called  to  begin  at  12  o'clock  on  the 
very  day  upon  which  the  former  session  expired,  Secretary  Root  and 
the  President  between  them  construed  into  existence  what  they  called 
"a  constructive  recess"  —that  is,  that  between  the  beginning  of  12 
o'clock  and  the  end  of  the  same  12  o'clock  on  the  same  day  there  had 
been  a  " constructive  recess,"  and  that  this  being  the  case,  the  President 
had  a  right  to  reappoint  this  proposed  appointee  during  this  so-called 
" recess."  He  did  reappoint  him  thus  contrary  to  law,  and  the  Senate 
was  subsequently  coerced  or  persuaded  to  confirm  him. 

The  logical  inconsistency  of  public  opinion  in  America  was  never 
better  shown  than  with  regard  to  this  incident.  The  President's  con- 
struction into  existence  of  a  " constructive  recess"  for  the  purpose  of 
saving  his  right  of  appointment  aroused  no  indignation,  although  it  was 
the  act  of  one  man.  He  had,  however,  set  a  precedent  which  soon  found 
imitators.  If  there  had  been  a  recess,  then  Members  of  Congress  were 
entitled  to  mileage  for  the  recess  or,  rather,  the  new  session  following 
it.  They  therefore  very  logically,  according  to  the  precedent  set  by  the 
Executive  (although  of  course  very  wrongfully,  but  no  more  wrongfully 
than  the  President)  voted  themselves  mileage  for  the  "recess." 

A  storm  'of  disapprobation  from  the  throats  of  the  people  and  the 
columns  of  the  newspapers  swelled  to  heaven.  The  Senate  voted  the  ex- 
tra mileage  out,  and  President,  people,  and  all  "congratulated  the 
country."  The  man  who  imagined  the  iniquitous  thing  and  acted  upon 
it  secured  the  result  that  he  aimed  at  and  was  little,  if  at  all,  criticized. 
The  very  Senate  that  voted  extra  mileage  out  of  the  law  upon  the  ground 
that  there  had  been  no  constructive  recess  finally  confirmed  the  ap- 
pointee whom  the  President  had  hurled  back  at  them  upon  the  opposite 
theory  that  there  had  been  a  constructive  recess. 

Franklin  Pierce  in  a  recent  book,  that  ought  to  be  taught  in  every 
school  and  college  where  civil  government  is  taught,  a  book  entitled 
"Federal  Usurpations,"  from  which  I  have  drawn  much  for  this  speech, 
says:  "Social  evolution  progresses  actually  with  the  importance  of  the 
citizen  over  the  State  and  decreases  in  the  proportion  of  the  importance 
of  the  State  over  the  people."  All  these  propositions  of  adding  to  the 
powers  of  government  by  "Executive  action"  and  "legislative  action" 
and  "judicial  construction"  and  "constructions  to  be  found"  leave 
that  great  truth  out  of  sight.  I  know  of  no  people  who  have  too  little 
government.  We  do  not  want  an  America  like  Sparta,  where  the  State 
was  all  and  man  was  nothing.  We  want  no  Rome,  even,  where  re- 
sponsibility was  so  entirely  devolved  upon  government  that  when  gov- 
ernment itself  grew  weak  there  was  no  initiative  left  among  the  people 
even  to  resist  invasion  —  a  herd  of  helpless  sheep  they  were. 

Our  weight  of  political  machinery  is  increasing  all  the  time.  Not 
many  years  ago  there  were  about  200  special  agents  —  in  other  words, 
detectives  and  spies  —  in  the  employ  of  the  Government.  There  are 


CENTRALIZATION  795 

over  3,000  now,  taking  the  places  of  ordinary  Government  officials, 
going  up  and  down  the  land  hunting  up,  by  detective  methods,  viola- 
tions of  Federal  statutes.  A  detective  is  like  an  expert  in  the  medical 
profession.  He  generally  finds  what  he  is  seeking.  God  never  made 
a  throat  or  a  nose  to  suit  a  throat  and  nose  expert;  he  never  made  a 
pair  of  eyes  to  suit  an  eye  specialist.  The  Department  of  Justice  uses 
a  great  many  of  these  detectives.  When  you  begin  to  inquire  under 
what  authority  of  law,  it  is  difficult  to  procure  an  answer.  That  Depart- 
ment seems  to  borrow  them  from  the  Treasury  Department.  In  other 
words,  they  are  detailed  from  the  Treasury  Department  to  do  work 
for  the  Department  of  Justice.  The  law  appropriating  for  them  in  the 
Treasury  Department  appropriates  for  them  for  certain  express  pur- 
poses —  chiefly  for  ferreting  out  and  procuring  punishment  of  counter- 
feiters and  violators  of  the  internal-revenue  and  customs  laws.  They 
are  being  used  for  a  hundred  purposes  —  peonage  is  the  immediate  fad ; 
public-land  stealing  was  the  fad  a  few  months  back.  In  so  far  as  special 
agents  are  being  used  for  the  purpose  of  investigating  trusts  and  bring- 
ing them  to  book,  there  is  express  authority  of  law  independently. 

Judge  George  Gray  well  says  in  a  recent  speech  that  in  Rome  when 
a  Dictator  was  appointed,  his  instructions  were  "to  take  care  that  the 
State  receive  no  harm."  This  was  a  pretty  broad  authority.  Mr.  Bryce, 
the  author  of  "The  American  Commonwealth,"  a  book  which  has  done 
much  harm,  seems  to  think  from  what  he  says  that  by  a  sort  of  construc- 
tion or  implication  our  Presidents,  jn  times  of  acute  peril  may,  or  must, 
act  on  a  like  instruction.  The  present  President  does  not  seem  to  think 
that  it  is  necessary  to  wait  for  a  time  of  acute  peril,  but  that  the  instruc- 
tion is  good  "for  any  old  time." 

When  the  New  York  constitutional  convention  adopted  the  Constitu- 
tion of  the  United  States,  it  adopted  it  with  the  proviso  that  there  should 
be  no  extension  of  power  "  by  legal  fiction."  This  was  to  prevent  usurpa- 
tion of  Federal  power  by  construction.  How  far  the  power  of  legal 
fiction  may  carry  a  system  of  laws  may  be  realized  when  it  is  remembered 
that  from  the  twelve  tables  of  ancient  Rome  there  grew  up  by  construc- 
tion and  legal  fiction  the  corpus  juris  civilis,  and  that  from  a  lot  of  old 
customs  there  grew  up  by  court  precedents  the  great  body  of  our  "com- 
mon law,"  or  lex  non  scripta.  The  only  restraint  that  we  have  upon 
Executive  usurpation  is  judicial  constraint  and  impeachment,  and  the 
only  restraint  on  judicial  usurpation  is  the  power  of  impeachment  by 
the  House  of  Representatives  before  the  Senate  acting  as  a  grand  court 
of  impeachment.  It  requires  two-thirds  of  the  Senators  to  convict,  and 
the  sole  penalty  is  deprivation  of  office. 


I  shall  not  say  much  more,  however,  about  judicial  usurpation,  be- 
cause there  has  not  been  as  much  of  usurpation  by  that  branch  of  the 


796  AMERICAN  FEDERAL   GOVERNMENT 

Government,  either  attempted  or  consummated,  as  by  the  other  two. 
Upon  the  whole,  our  judiciary  has  rather  preserved  the  Constitution 
from  popular  passion  and  impulse,  from  party  spirit  and  sectional  hate, 
and  in  proportion  as  Congress  and  the  Executive  grow  wilder,  it  sets 
aside  from  year  to  year  a  larger  and  larger  proportion  of  their  acts.  Dur- 
ing the  entire  period  before  the  civil  war  it  had  set  aside  only  two  or 
three  general  acts.  Just  how  many  multiples  of  that  number  have,  been 
declared  unconstitutional  since  I  can  not  now  say,  but  we  have  grown 
accustomed  to  the  Supreme  Court's  checking  up  Congress  and  the 
President  every  now  and  then,  and  the  prayer  of  every  good  American 
is  that  it  may  do  so  "more  and  more  unto  the  perfect  day." 

Yet  even  the  judiciary  has  made  some  apparently  queer  decisions 
lately.  In  Mankichi's  case,  which  came  up  from  Hawaii,  there  had 
been  no  indictment  nor  any  unanimous  verdict  of  twelve  men  —  in  our 
constitutional  sense  a  jury  verdict  —  against  the  prisoner,  and  yet  the 
Supreme  Court  affirmed  the  case  upon  the  ground  that  the  laws  of 
Hawaii,  when  annexed  to  the  United  States,  had  not  required  an  in- 
dictment and  had  made  provision  for  a  jury  that  did  not  find  a  verdict 
by  unanimity,  but  by  majority.  Upon  what  principle,  the  court  arro- 
gated to  itself  the  right  to  say  just  which  fundamental  constitutional 
principles  should  go  with  the  Constitution  to  Hawaii  simultaneously 
with  annexation,  and  which  of  those  fundamental  notions  should  remain 
behind  —  to  go  later  or  not  at  all  —  presents  a  curious  study. 

The  gradual  growth  of  injunctions  in  Federal  courts  constitutes  the 
chief  thing  to  complain  of  in  connection  with  that  branch  of  our  Govern- 
ment. Originally  the  equitable  right  of  injunction  was  issued  only  when 
the  law  remedy  was  inadequate  because  of  damages  immediate  and 
irreparable,  and  it  did  not  apply  to  crimes.  In  Lennon's  case  (166  U.  S.), 
however,  men  were  actually  enjoined  from  refusing  to  haul  cars  of  a 
railroad  and  from  leaving  the  employ  of  the  railroad,  while  under  the 
charge  of  a  receiver  appointed  by  a  Federal  court,  on  the  ground  that 
their  quitting  the  employment  " crippled  the  railroad's  operation,"  and 
I  believe,  if  I  remember  correctly,  also  upon  the  ground  that  it  interfered 
with  interstate  commerce.  This  injunction  was  issued  in  spite  of  the 
thirteenth  amendment,  which  forbids  "involuntary  servitude  except 
from  crime." 

If  everything  that  can  be  construed  to  be  an  interference  with  inter- 
state commerce  is  to  be  taken  as  a  just  ground  for  an  injunction,  then  a 
man  who  shoots  another  riding  on  an  interstate  ticket  from  Philadelphia 
to  New  Orleans  would,  as  far  as  I  can  see,  subject  himself  to  Federal 
judge-made  penalties,  instead  of  being  simply  tried  by  a  jury  for  murder, 
according  to  the  laws  of  the  State  of  the  place  where  he  committed  the 
murder.  Even  when  United  States  penal  statutes  exist,  where  a  man 
can  be  arrested  upon  affidavit  and  rendered  harmless,  the  Federal  courts 
still  issue  injunctions. 


CENTRALIZATION  797 

The  assertion  of  the  power  to  inflict  penalties  for  indirect  contempts  — 
constructive  contempts,  contempts  committed  out  of  the  view  of  the 
court  —  punishments  which  carry  deprivation  of  liberty  and  deprivation 
of  property  without  a  jury  trial  is  another  abuse. 

These  things  encourage  a  spirit  of  anarchy. 

Every  man,  if  possible,  ought  to  have  a  trial  by  jury. 

Injunctions  are  issued  on  ex  parte  hearing,  on  mere  affidavits  without 
notice  even  to  the  defendant,  and  on  reference  of  questions  of  fact  to 
one  referee.  Upon  such  evidence  as  that,  and  such  findings  of  fact  as 
that,  before  any  real  trial,  the  enforcement  of  State  laws,  passed  deliber- 
ately by  State  legislatures  and  approved  solemnly  by  State  executives, 
are  enjoined.  The  plea  generally  is  that  the  State  law  is  "confiscatory." 
Of  course,  when  upon  a  hearing  properly  had,  after  due  notice  to  both 
sides,  and  a  proper  investigation  of  the  facts,  State  legislation  is  found 
to  be  really  confiscatory,  it  must  be  set  aside  by  permanent  injunction, 
as  conflicting  with  the  Constitution  of  the  United  States.  But  that  is 
not  the  question  here ;  the  question  is  whether  the  temporary  restraining 
order  issued  ex  parte  upon  mere  affidavits  and  so-called  ascertainment 
of  fact  by  a  master  in  Chancery,  very  little  acquainted  with  the  subject- 
matter  and  very  little  able  to  judge  of  it,  should  prevail  to  annul  a  State 
statute. 

Let  us  notice  a  tendency  to  usurp  Federal  power  under  the  treaty  clause. 
Calhoun  says  that  treaties  are  the  supreme  law  of  the  land  "provided 
such  regulations"  (in  treaties)  "are  not  inconsistent  with  the  Constitu- 
tion." I  quote  Calhoun,  because  he  went  further  than  almost  anybody 
in  maintaining  the  "plenary  power  of  the  Federal  Government  to  regulate 
our  intercourse  with  foreign  powers." 

If  the  treaty  attempt  to  treat  concerning  some  subject-matter  the  regu- 
lation of  which  is  not  delegated  to  any  branch  whatsoever  of  the  Federal 
Government,  then  that  treaty  is  "inconsistent  with  the  Constitution," 
as  being  inconsistent  with  the  purpose  for  which  the  Federal  Govern- 
ment was  formed.  If  it  attempt  to  treat  of  some  subject-matter  the  regu- 
lation of  which  is  delegated  to  any  branch  of  the  Federal  Government, 
I  care  not  which  branch,  I  admit  the  "plenary  power  of  the  Federal  Gov- 
ernment" thereby  exercised.  That  the  treaty  can  give  an  alien  equal 
rights  with  the  citizen,  even  within  a  State,  concerning  a  subject-matter 
that  the  Federal  Government  would  otherwise  not  control  I  do  not  doubt, 
but  that  it  can  give  him  superior  privileges  to  a  citizen  I  deny.  If  by 
treaty  with  Japan,  for  example,  California  can  be  forced  to  admit  Japan- 
ese, or  by  treaty  with  China  it  can  be  forced  to  admit  Chinese,  to  the  same 
schools  with  white  children,  then  by  treaty  with  Haiti  or  Santo  Domingo 
negroes  from  those  islands  could  be  admitted  to  the  same  schools  with 
white  children  in  Mississippi,  let  us  say,  where  native-born  negroes, 
citizens  of  the  United  States,  can  not  attend  white  schools. 

The  President  in  a  Massachusetts  speech  is  quoted  as  saying:  "States 


798  AMERICAN   FEDERAL   GOVERNMENT 

rights  ought  to  be  preserved  when  they  mean  the  people's  rights,  but  not 
when  they  mean  the  people's  wrongs." 

In  God's  name,  who  is  to  say  what  are  the  people's  rights  and  what 
are  the  people's  wrongs  ?  If  I  undertook  to  answer  the  question,  I  should 
say:  " The  people  themselves."  And  then,  if  I  were  asked  further  how 
they  were  to  say  it,  or  have  said  it,  how  they  were  to  draw  the  line,  or 
have  drawn  it,  how  they  were  to  prescribe  the  people's  rights  and  pre- 
scribe the  people's  wrongs,  I  would  say  in  the  fundamental  organic  law, 
the  Constitution  of  the  United  States  and  in  the  constitutions  of  the  several 
States,  which  are  the  prescribing  voice  of  the  people  themselves,  saying 
both  to  the  Federal  Government  as  contra  distinguished  from  the  State 
governments:  " Within  these  boundaries  thou  must  travel,"  and  say- 
ing to  the  State  governments,  the  residua  of  governmental  authority : 
"Thus  far  and  thus  far  only  in  the  United  States  shall  any  governmental 
authority  over  man  ever  go." 

We  are  running  mad.  The  latest  proposition  is  to  have  a  law  for  Fed- 
eral registration  of  automobiles,  on  the  ground  that  automobiles  do 
sometimes  cross  State  lines. 

It  is  proposed  by  the  President  to  charter  and  by  Mr.  Bryan  to  license 
corporations  chartered  by  the  States  before  they  can  enter  into  interstate 
business. 

The  President's  latest  astounding  proposition  is  to  leave  a  branch  of 
the  executive  government  to  distinguish  between  "good  trusts"  and 
"bad  trusts,"  marking  out  one  for  a  license  to  do  business  and  another 
for  extirpation.  What  a  campaign-contribution  breeder  that  would  be ! 
How  the  combinations  and  trusts  —  the  present  substantive  law  being 
cunningly  retained  in  the  plan  —  would  run  over  one  another  in  con- 
trib.uting  to  the  campaign  funds  of  whichever  party  happened  to  be  in 
power,  in  order  to  bias  the  executive  department  of  that  party  in  finding 
them  "good"  and  not  "bad!" 

I  have  referred  once  before  to  administrative  or  bureaucratic  usurpa- 
tions of  Federal  power  as  being  most  dangerous  of  all,  because  most 
insidious  and  least  seen  by  the  average  citizen.  I  wish  that  some  of  you, 
who  have  time  to  do  it,  would  study  the  case,  referred  to  by  Franklin 
Pierce,  by  Juy  Toy,  a  Chinaman  (reported  in  198  U.  S.),  who  was  born 
in  the  United  States,  went  to  China  on  a  visit,  and  came  back;  was 
sentenced  to  deportation  as  an  alien  by  the  Immigration  Commission, 
and  whose  sentence  was  affirmed  by  the  Secretary  of  the  Treasury.  In 
some  way  the  poor  devil  managed  to  communicate  with  a  lawyer  and  to 
avail  himself  of  habeas  corpus  proceedings. 

The  referee  found  Toy's  statement  that  he  was  born  in  America  to  be 
true.  The  case  finally  got  to  the  Supreme  Court.  That  court  decided 
that  the  question  of  fact  as  to  whether  he  was  or  was  not  a  native-born 
citizen  of  the  United  States  had  been  decided  by  an  administrative  tribu- 
nal authorized  to  try  it  and  that  that  finding  was  final  and  conclusive; 


CENTRALIZATION  799 

in  other  words,  that  it  made  no  difference  whether,  as  a  matter  of  fact, 
Toy  was  a  natural-born  citizen  or  an  alien,  he  was  banished,  and  that 
was  all  there  was  to  it ! 

It  is  not  alone  in  connection  with  this  case  that  the  courts  have  held 
that  they  could  not  take  cognizance  of  the  conclusions  reached  by  ex- 
ecutive and  administrative  tribunals  and  that  no  appeal  to  any  court 
would  lie,  but  in  other  matters  as  well. 

For  example,  the  power  at  present  reposed  in  the  Post  Office  Depart- 
ment when  issuing  fraud  orders,  although  it  has  not  as  yet  been  as  seri- 
ously abused  as  it  may  be,  is  a  power  out  of  which  the  destruction  of  the 
entire  principle  of  the  freedom  of  the  press  may  flow,  especially  when 
dealing  through  it  with  dangerous  and  unpopular  classes.  The  Depart- 
ment may  to-morrow,  if  it  choose,  cut  off  the  New  York  Times  or  the 
North  American  Review,  or  Collier's  Weekly  from  the  right  to  be  trans- 
mitted through  the  mails,  under  a  fraud  order.  If  it  chose  to  do  so, 
there  would  be  no  appeal  to  any  court.  It  could  furthermore,  if  it  chose, 
refuse  by  a  fraud  order  to  permit  any  mail  to  be  delivered  to  either  of 
them  or  to  me  or  to  you.  It  could  do  this  upon  the  report  of  detectives 
in  the  Department,  and  perhaps  the  first  we  would  know  of  it  would  be 
from  missing  our  mail.  Moreover,  upon  complaint  and  inquiry  as  to 
the  exact  point  in  which  we  had  offended,  the  Department  might  further- 
more return  the  answer  that  it  was  not  "practicable  to  make  reply"  to 
our  inquiry. 

Franklin  Pierce,  at  any  rate,  quotes  a  case  in  the  book  to  which  I  have 
referred,  where  certain  printed  matter  was  excluded  from  the  mail  on 
the  ground  of  "obscenity."  The  Department  was  written  to  to  specify 
in  what  respect  and  how  and  where  there  was  anything  obscene  in  the 
printed  matter,  and  it  is  quoted  to  have  replied  that  it  was  "not  practi- 
cable" to  answer  the  inquiry. 

It  is  not  to  the  purpose  to  reply  that  the  Department  would  not  do 
what  I  have  supposed.  That  it  might  is  a  sufficient  danger  to  human 
liberty. 

In  the  case  of  South  Carolina  against  the  United  States  (199  U.  S.) 
the  Supreme  Court  says  of  our  Constitution  —  which,  I  repeat,  is  the 
only  sovereign  in  America  except  the  people  themselves  acting  in  a 
prescribed  way  while  exercising  the  power  to  amend  and  change  it  —  the 
Supreme  Court  says  of  that  Constitution,  that  it  "speaks  not  only  in  the 
same  way,  but  with  the  same  meaning  and  intent  with  which  it  spoke, 
when  it  came  from  the  hands  of  its  framers  and  was  voted  on  and  adopted 
by  the  people." 

That  phrase  ought  to  be  memorized  by  every  schoolboy  who  is  study- 
ing "civil  government"  in  every  public  school.  Whatever  the  British 
constitution  may  be  —  unwritten,  not  exactly  definable  —  the  American 
Constitution  is  an  instrument  of  written,  prescribed,  fixed  sentences, 
phrases,  and  words,  that  do  not  dance  about  kaleidoscopically  upon  the 


800  AMERICAN   FEDERAL   GOVERNMENT 

printed  page,  and  bear  different  meanings  to-day  and  to-morrow,  but 
mean  just  what  they  meant  when  they  were  uttered,  although  to-day,  of 
course,  they  may  be  applied  to  very  many  conditions  and  instrumentali- 
ties that  did  not  exist  then.  "  Whenever  an  end  aimed  at  is  constitutional 
then  all  proper  means  to  that  end  are  also  constitutional." 

The  great  Federalist  judge  himself,  John  Marshall,  uttered  those 
words.  The  converse  to  that  is  not  true,  to  wit,  that  whenever  a  certain 
means  is  constitutional,  therefore  the  legislative  end  aimed  at  is  constitu- 
tional. Congress  has  a  right,  for  example,  to  regulate  interstate  com- 
merce; but  if  the  end  aimed  at  be  not  in  verity  the  regulation  of 
interstate  commerce,  but  be  the  regulation  of  child  labor,  or  manufac- 
turing, or  education,  or  the  suppression  of  ordinary  crimes  within  a  State, 
and  the  interstate  commerce  clause  of  the  Constitution  be  resorted  to 
merely  as  a  means  to  the  accomplishment  of  one  of  these  latter  ends  — 
which  end  is  in  itself  unconstitutional  —  then  the  thing  sought  to  be 
done  is  exactly  the  opposite  of  that  which  John  Marshall  said  could  be 
constitutionally  done. 

One  of  the  features  most  precious  in  our  dual  system  of  government 
consists  in  the  very  fact  that  there  are  so  many  State  governments,  in 
so  many  different  climates,  with  so  many  different  sorts  of  population, 
so  many  different  systems  of  agriculture,  such  diversities  of  pursuits  and 
occupation,  of  heredity  and  environment,  that  they  enable  our  laws 
through  the  instrumentalities  of  the  State  legislatures  to  be  adapted  to 
the  needs  of  the  communities.  Thus  the  States  become  great  experi- 
mental fields.  South  Carolina  can  experiment  with  a  dispensary  law. 
If  damage  ensue,  it  is  limited  to  South  Carolina. 

The  people  of  the  balance  of  the  States  can  watch  it  without  harm  and 
learn  lessons ;  find  out  if  it  is  to  be  imitated  or  if  it  is  to  be  avoided.  If 
Oklahoma  wants  to  make  an  experiment  of  governmental  guaranty  of 
bank  deposits,  the  balance  of  the  Union  can  watch  the  experiment  with 
interest  and  with  profit;  without  loss  no  matter  how  it  turns  out.  If 
Oregon  wishes  to  try  the  experiment  of  initiative  and  referendum,  the 
same  observation  is  applicable.  All  of  us  can  watch  the  experiment  of 
woman's  suffrage  in  Colorado  and  some  day  imitate  it  or  else  learn  to 
avoid  it.  And  so  with  infinite  diversity  of  surroundings  and  influence, 
with*  emulation  existing  between  localities,  the  Federal  Government 
does  not  need  to  experiment.  In  other  lands  experiments,  if  harmful, 
are  not  national  hurts. 

The  very  maxim,  UE  pluribusm  unum"  is  a  Federal  maxim.  We  must 
preserve  not  only  the  "one,"  but  we  must  preserve,  with  equal  care  and 
jealousy,  the  integrity  of  the  "many"  governments  which  constitute  our 
system  —  an  "indissoluble  union  of  indestructible  States"  —a  "Re- 
public of  lesser  republics." 

May  God  grant  that  Jefferson  prove  right  and  Macaulay  prove  wrong, 
and  that  this  constitutional,  democratic,  representative,  Federal  Republic 


CENTRALIZATION  801 

of  ours  prove  not  a  failure,  as  it  assuredly  must  prove,  if  individual  self- 
government  based  on  the  "self-denying  ordinance  of  a  majority"  —  the 
Constitution  —  denying  absolutism  to  themselves  even,  and  if  local  self- 
government  or  home  rule  based  on  the  reserved  rights  of  the  States  be 
lost  sight  of  by  us  or  by  our  children. 

Remember  these  words  of  George  Washington: 

"This  Government,  the  offspring  of  our  own  choice,  uninfluenced  and 
unawed,  adopted  upon  full  investigation  and  mature  deliberation,  completely 
free  in  its  principles,  in  the  distribution  of  its  powers  uniting  security  with 
energy,  and  containing  within  itself  a  provision  for  its  own  amendment,  has  a 
just  claim  to  your  confidence  and  your  support. 


"The  basis  of  our  political  system  is  the  right  of  the  people  to  make  and  to 
alter  their  constitutions  of  government.  But  the  constitution  which  at  any 
time  exists,  till  changed  by  an  explicit  and  authentic  act  of  the  whole  people,  is 
sacredly  obligatory  upon  all." 

Spell  "Nation"  with  a  capital  N,  and  spell  "State"  with  a  capital  S, 
but,  above  all,  spell  "Individual"  with  a  capital  I,  just  twice  as  large. 
Be  jealous  of  all  government  and  of  all  increase  of  the  weight  of  govern- 
mental machinery. 


SPEECHES   OF   REPRESENTATIVES   SHERLEY,   COCKRAN, 
AND   OTHERS   ON   FEDERAL   POWERS1 

MR.  PAYNE.  Mr.  Speaker,  I  do  not  desire  to  discuss  this  resolution 
at  any  length,  as  the  matter  was  fully  discussed  at  the  last  Congress,  in 
reference  to  the  agricultural  appropriation  bill,  which  came  over  here 
with  a  revenue  amendment  attached  by  the  Senate.  On  that  occasion 
the  precedents  were  stated  to  the  House,  and  on  a  yea-and-nay  vote  only 
three  or  four  gentlemen  voted  against  it,  and  that  because  of  their  doubt 
as  to  whether  the  bill  really  contained  a  revenue  clause  or  not.  The  bill 
was  sent  back  to  the  Senate,  and  the  Senate  acquiesced  in  the  decision 
of  the  House,  and  withdrew  the  amendment  from  the  bill.  Now  they 
send  over  here  a  bill  which  is  purely  a  measure  of  taxation.  They  pro- 
pose that  the  2  per  cent  bonds  to  be  issued  for  the  construction  of  the 
isthmian  canal  shall  be  taxed  the  same  as  other  bonds  for  which  pro- 
vision of  law  is  niade  that  they  shall  be  used  as  a  basis  for  the  currency 
of  the  national  banks.  They  reduce  the  tax  on  those  bonds,  to  be  sure, 
but  the  bill  authorizes  a  tax.  This  is  a  tax  bill  pure  and  simple.  The 
Constitution  has  provided  for  the  origination  of  these  bills  in  the  House 
of  Representatives.  The  framers  of  the  Constitution  thought  there  was 

Congr.  Record,  Dec.  15,  1905. 
51 


802  AMERICAN   FEDERAL   GOVERNMENT 

a  reason  for  this.  The  House  has  contended  immemorially,  they  have 
always  contended  that  they  have  the  right,  and  they  have  asserted  the 
right  time  and  again  to  institute  revenue  measures.  They  have  the  only 
jurisdiction  in  the  Congress  of  the  United  States  where  these  measures 
may  be  originated.  Therefore,  I  ask  the  House  to  adopt  this  resolution ; 
and  in  that  connection  I  do  not  care  to  take  up  the  time  of  the  House 
by  debate  now.  I  may  desire  to  extend  my  remarks  citing  some  of  the 
precedents;  but  the  Constitution  is  so  familiar,  and  this  clause  of  the 
Constitution  is  so  familiar  that  I  do  not  think  it  is  necessary  for  me  to 
recite  them  for  gentlemen  to  vote  intelligently  upon  this  resolution. 
[Loud  applause.] 

Mr.  WILLIAMS.  Mr.  Speaker,  this  comes  to  me  rather  suddenly,  and 
is  rather  an  astonishing  thing.  I  saw  in  the  morning  papers  that  the 
Senate  had  taken  this  action,  but  I  thought  they  had  taken  it  en  route  to 
settlement  and  the  passage  of  a  bill  "for  the  construction  of  an  isthmian 
canal."  This  matter  comes  back  entitled  "An  act  to  provide  for  the 
construction  of  a  canal,"  etc.,  but  there  is  nothing  in  it  at  all  except  a 
provision  for  putting  certain  bonds  in  another  class ;  and  in  my  opinion 
it  is  undoubtedly  a  violation  of  the  privileges  of  this  House,  as  given  to 
it  by  the  Constitution  of  the  United  States.  [Loud  applause.]  I  believe 
that  the  position  taken  by  the  gentleman  from  New  York  is  correct,  and 
I  think  we  ought  to  pursue  either  the  course  suggested  by  him  or  some 
other  course  that  would  indicate  our  opinion  to  the  effect  that  it  is  a 
breach  of  the  constitutional  privileges  of  the  House.  I  see  no  objection 
at  the  first  blush  to  the  resolution  as  read: 

Resolved,  That  the  bill  S.  1475,  in  the  opinion  of  the  House,  contravenes  the 
first  clause-  of  the  seventh  section  of  the  first  article  of  the  Constitution  and  is 
an  infringement  of  the  privileges  of  this  House,  and  that  the  said  bill  be  taken 
from  the  Speaker's  table  and  be  respectfully  returned  to  the  Senate  with  a 
message  communicating  this  resolution. 

[Loud  applause.] 

Mr.  PAYNE.  If  there  is  no  debate  upon  this  question,  I  shall  ask  for 
a  division,  in  order  that  we  may  have  a  rising  vote  and  a  count  on  this 
subject.  I  do  not  care  to  ask  for  the  yeas  and  nays,  but  simply  call  for 
a  division. 

The  question  was  taken  on  agreeing  to  the  resolution;  and  on  a 
division  there  were  —  ayes  357,  noes  none. 

So  the  resolution  was  unanimously  agreed  to. 

On  motion  of  Mr.  Payne,  a  motion  to  reconsider  the  vote  by  which 
the  resolution  was  agreed  to  was  laid  on  the  table. 

Mr.  PAYNE.  I  now  move  that  the  House  resolve  itself  into  Committee 
of  the  Whole  House  on  the  state  of  the  Union. 

The  motion  was  agreed  to. 


CENTRALIZATION  803 


DISTRIBUTION  OF  PRESIDENT'S  MESSAGE 

The  House  accordingly  resolved  itself  into  Committee  of  the  Whole 
House  on  the  state  of  the  Union,  Mr.  Butler  of  Pennsylvania  in  the 
chair. 

The  CHAIRMAN.  The  House  is  in  Committee  of  the  Whole  House  on 
the  state  of  the  Union  for  the  further  consideration  of  House  resolution 
42,  and  the  gentleman  from  Kentucky  is  recognized. 

Mr.  SHERLEY.  Mr.  Chairman,  it  is  never  pleasant  to  find  one's  self 
in  the  position  of  Mahomet's  coffin,  suspended  between  heaven  and 
earth,  but  I  was  very  glad  to  yield  the  floor  that  this  committee  might 
rise,  in  order  that  the  House  might  maintain  its  constitutional  rights. 
It  is  so  seldom  that  a  member  of  this  body  has  a  chance  to  protest  against 
the  constant  disregard  of  the  constitutional  rights  and  dignities  of  the 
House  that  I  am  always  willing  to  yield  the  floor  for  any  such  purpose. 
[Applause.] 

To  return  to  the  subject  of  discussion,  I  know  of  no  more  immoral 
practice  than  that  which  has  grown  up  in  the  House  of  Representa- 
tives of  using  the  taxing  power  for  other  purposes  than  the  raising  of 
revenue.  It  may  be  that  in  other  countries  the  taxing  power  has  been 
necessary  as  the  weapon  of  liberty,  either  by  denying  appropriations  or 
by  taxing  particular  things,  but  in  America  the  theory  of  our  Constitu- 
tion has  been,  and  still  is,  that  through  other  means  the  liberties  of  the 
people  are  guaranteed,  and  the  taxing  power  was  given  only  for  the  pur- 
pose of  raising  revenue.  So,  when  you  find  upon  this  floor  serious  dis- 
cussions of  the  reference  of  a  bill  to  the  Ways  and  Means  Committee, 
upon  the  implied,  if  not  the  openly  expressed,  opinion  that  the  taxing 
power  shall  be  used  not  for  the  purpose  of  revenue,  but  for  the  purpose" 
of  doing  something  that  otherwise  Congress  could  not  do,  and  that  it 
was  not  intended  that  Congress  should  do,  I,  for  one,  propose  to  protest. 
Therefore,  I  am  opposed  to  the  reference  of  this  matter  to  the  Ways  and 
Means  Committee.  I  am  also  opposed  to  the  reference  of  it  to  the  Inter- 
state and  Foreign  Commerce  Committee.  It  is  conceded  by  the  dis- 
tinguished chairman  of  that  committee  that  the  Supreme  Court  will  have 
to  change  its  mind  in  order  for  this  Congress  to  have  jurisdiction  under 
that  clause  of  the  Constitution.  He  enters  the  domain  of  prophecy  and 
says  that  they  will  do  it.  It  may  be  that  he  agrees  with  Mr.  Dooley,  who, 
in  the  discussion  of  the  insular  cases,  said  to  Hennessy  that  he  was  in 
some  doubt  as  to  whether  the  Constitution  followed  the  flag,  or  the  flag 
the  Constitution,  but  it  was  evident  that  the  Supreme  Court  followed  the 
election  returns.  [Laughter.] 

It  may  be  that  he  considers  the  clamor  now  being  raised  throughout 
the  land  for  the  regulation  of  insurance  companies  by  the  National 
Government  will  have  sufficient  effect  that,  in  the  event  of  national 


804  AMERICAN   FEDERAL   GOVERNMENT 

legislation,  the  Supreme  Court  will  sustain  it  and  overrule  itself.  About 
that  he  may  be  a  better  judge  than  I  am,  but  it  is  apparent  to  every 
Member  on  this  floor  that  the  discussion  had  for  the  past  two  days  shows 
that  it  is  the  overwhelming  judgment  of  the  House  that,  as  the  Constitu- 
tion is  now  interpreted,  we  have  no  such  jurisdiction ;  that  if  we  are  to 
legislate  on  this  subject,  we  must  discover  some  other  provision  of  the 
Constitution  than  the  commerce  clause. 

Now,  we  have  a  great  committee  in  this  House,  a  committee  that  not 
only  reports  bills  for  legislation,  but  is  also  the  judicial  adviser  of  the 
House.  The  Committee  on  the  Judiciary  is  supposed  to  be  made  up  in 
its  membership  of  the  ablest  lawyers  in  the  House.  They  are  there  for 
the  purpose  of  not  only  originating,  legislation,  but  they  are  there  for  the 
purpose  of  instructing  the  House  upon  questions  of  constitutional  power. 
What  more  proper  than  to  do  what  the  Senate  has  done,  make  reference 
of  a  matter  of  this  kind  to  the  Judiciary  Committee,  that  they  may  re- 
port back  to  the  House  whether,  in  their  judgment,  this  House  has 
jurisdiction,  and  if  it  has  jurisdiction,  the  extent  of  it.  Shall  we  deter- 
mine now  that  one  or  the  other  of  these  committees  may  have  this  matter 
without  a  proper  investigation  ?  If  the  House  is  to  now  determine  that 
fact,  then,  on  the  knowledge  that  the  House  has  of  the  decisions  of  the 
Supreme  Court,  it  ought  not  to  refer  this  to  any  committee,  because  this 
House  knows  that  it  has  been  expressly  declared  that  there  can  be  no 
interstate  commerce  in  insurance.  Of  course  it  can  be  reached  collater- 
ally, but  is  n't  it  a  humiliating  spectacle,  is  n't  it  such  a  spectacle  as  has 
been  responsible  for  a  whole  lot  of  trouble  in  America,  that  men  sworn 
to  support  the  Constitution,  representatives  of  a  great  body  of  the  Gov- 
ernment, are  willing  to  disregard  its  plain  limitations,  and  by  subterfuge, 
under  the  taxing  powers,  do  that  which  in  their  hearts  they  do  not  believe 
they  are  entitled  to  do?  The  fact  that  the  House  has  done  it,  the  fact 
that  we  have  got  precedents  for  it,  only  makes  it  worse.  It  only  shows 
how  one  thing  leads  to  another.  The  other  day  a  statement  was  made 
in  the  other  branch  of  the  National  Legislature  that  that  provision  in  the 
law  creating  the  Bureau  of  Commerce  and  Labor,  relating  to  insurance, 
crept  in  there  without  the  knowledge  of  that  body;  that  h'ad  they  had 
knowledge  of  it,  there  would  have  been  a  pronounced  protest ;  and  now 
we  have  a  marked  illustration  of  the  danger  of  a  precedent. 

The  President  of  the  United  States  in  his  message  says  that  because 
Congress  has  given  to  the  Bureau  of  Commerce  and  Labor  the  power  to 
make  certain  general  investigations  and  inquiry  as  to  insurance,  there- 
fore we  have  presumptively  declared  that  it  is  a  matter  proper  for  national 
governmental  control,  and  that  declaration  is  used  as  a  lever  to  make  us 
go  a  step  further.  I  understand  that  some  member  of  the  Judiciary 
Committee  will  offer  an  amendment  referring  this  matter  to  that  com- 
mittee, and  I  hope  that  that  amendment  will  prevail. 

Now,  Mr.  Chairman,  I  desire  to  turn  from  this  discussion  of  a  narrow 


CENTRALIZATION  805 

proposition  to  the  discussion  of  a  broader  one.  I  believe  the  House  will 
bear  me  out  in  the  statement  that  I  have  never  taken  a  partisan,  captious 
position  on  the  floor.  I  do  not  propose  to  do  it  now,  but  if  I  should  let 
pass  by  in  silence  certain  portions  of  the  President's  message  without  a 
protest,  I  should  consider  that  I  had  no  reason  to  be  upon  this  side  of 
the  aisle,  that  I  ought  to  go  over  to  the  other  side.  If  I  am  to  assume 
the  position  that  seems  to  be  taken  by  some,  of  out-heroding  Herod, 
then  I  propose  to  go  into  Herod's  camp  where  I  can  do  it  effectively, 
and  not  remain  outside  of  it.  I  want  to  protest  against  that  modern 
theory  so  pronouncedly  and  ably  stated  in  the  President's  message  that 
because  a  thing  is  big  therefore  it  must  come  within  the  national  jurisdic- 
tion. It  is  true  that  this  whole  country  has  been  stirred  from  one  end  to 
another  by  the  disclosures  in  regard  to  life  insurance.  It  is  also  true  that 
every  one  of  those  disclosures  have  been  made  known  to  the  public  by 
State  agency  and  not  by  the  National  Government.  It  is  true  that  the 
Supreme  Court  of  the  United  States  in  deciding  the  case  of  Paul  against 
Virginia,  in  deciding  the  cases  that  followed  after  that,  plainly  indicated 
that  the  States  had  complete  —  not  only  complete,  but  exclusive  juris- 
diction over  the  subject.  Yet  we  have  sent  us  a  message  saying  that  the 
time  has  arrived  where  it  is  evident,  in  the  judgment  of  the  people,  that 
the  States  can  not  manage  these  things  and  that  we  must  come  to  the 
National  Government. 

The  President  in  his  message  says: 

The  fortunes  amassed  through  corporate  organization  are  now  so  large,  and 
vest  such  power  in  those  that  wield  them,  as  to  make  it  a  matter  of  necessity  to 
give  to  the  sovereign  —  that  is,  to  the  Government,  which  represents  the  people 
as  a  whole  —  some  effective  power  of  supervision  over  their  corporate  use.  In 
order  to  insure  a  healthy  social  and  industrial  life,  every  big  corporation  should 
be  held  responsible  by,  and  be  accountable  to,  some  sovereign  strong  enough  to 
control  its  conduct. 

******** 
The  makers  of  our  National  Constitution  provided  especially  that  the  regu- 
lation of  interstate  commerce  should  come  within  the  sphere  of  the  General 
Government.  The  arguments  in  favor  of  their  taking  this  stand  were  even 
then  overwhelming.  But  they  are  far  stronger  to-day,  in  view  of  the  enormous 
development  of  great  business  agencies  usually  corporate  in  form.  Experience 
has  shown  conclusively  that  it  is  useless  to  try  to  get  any  adequate  regulation 
and  supervision  of  these  great  corporations  by  State  action.  Such  regulation 
and  supervision  can  only  be  effectively  exercised  by  a  sovereign  whose  juris- 
diction is  coextensive  with  the  field  work  of  the  corporations  —  that  is,  by  the 
National  Government.  I  believe  that  this  regulation  and  supervision  can  be 
obtained  by  the  enactment  of  law  by  the  Congress.  It  this  proves  impossible, 
it  will  certainly  be  necessary  ultimately  to  confer  in  fullest  form  such  power 
upon  the  National  Government  by  a  proper  amendment  of  the  Constitution. 
It  would  obviously  be  unwise  to  endeavor  to  secure  such  an  amendment  until 
it  is  certain  that  the  result  can  not  be  obtained  under  the  Constitution  as  it  now 


8o6  AMERICAN  FEDERAL   GOVERNMENT 

is.  The  laws  of  the  Congress  and  of  the  several  States  hitherto,  as  passed  upon 
by  the  courts,  have  resulted  more  often  in  showing  that  the  States  have  no 
power  in  the  matter  than  that  the  National  Government  has  power;  so  that 
there  at  present  exists  a  very  unfortunate  condition  of  things,  under  which 
these  great  corporations  doing  an  interstate  business  occupy  the  position  of 
subjects  without  a  sovereign,  neither  any  State  government  nor  the  National 
Government  having  effective  control  over  them.  Our  steady  aim  should  be  by 
legislation,  cautiously  and  carefully  undertaken,  but  resolutely  persevered  in, 
to  assert  the  sovereignty  of  the  National  Government  by  affirmative  action. 

*******  * 

And  again: 

The  great  insurance  companies  afford  striking  examples  of  corporations 
whose  business  has  extended  so  far  beyond  the  jurisdiction  of  the  States  which 
created  them  as  to  preclude  strict  enforcement  of  supervision  and  regulation 
by  the  parent  States.  In  my  last  annual  message  I  recommended  "that  the 
Congress  carefully  consider  whether  the  power  of  the  Bureau  of  Corporations 
can  not  constitutionally  be  extended  to  cover  interstate  transactions  in  in- 
surance." 

******** 

That  State  supervision  has  proved  inadequate  is  generally  conceded.  The 
burden  upon  insurance  companies,  and  therefore  their  policy  holders,  of 
conflicting  regulations  of  many  States,  is  unquestioned,  while  but  little  effective 
check  is  imposed  upon  any  able  and  unscrupulous  man  who  desires  to  exploit 
the  company  in  his  own  interest  at  the  expense  of  the  policy  holders  and  of  the 
public.  The  inability  of  a  State  to  regulate  effectively  insurance  corporations 
created  under  the  laws  of  other  States  and  transacting  the  larger  part  of  their 
business  elsewhere  is  also  clear.  As  a  remedy  for  this  evil  of  conflicting,  in- 
effective, and  yet  burdensome  regulations  there  has  been  for  many  years  a 
widespread  demand  for  Federal  supervision.  The  Congress  has  already  recog- 
nized that  interstate  insurance  may  be  a  proper  subject  for  Federal  legislation, 
for  in  creating  the  Bureau  of  Corporations  it  authorized  it  to  publish  and  supply 
useful  information  concerning  interstate  corporations,  "including  corporations 
engaged  in  insurance."  It  is  obvious  that  if  the  compilation  of  statistics  be  the 
limit  of  the  Federal  power,  it  is  wholly  ineffective  to  regulate  this  form  of  com- 
mercial intercourse  between  the  States,  and  as  the  insurance  business  has  out- 
grown in  magnitude  the  possibility  of  adequate  State  supervision,  the  Congress 
should  carefully  consider  whether  further  legislation  can  be  had. 

The  President's  reference  to  the  reasons  that  controlled  the  makers 
of  the  National  Constitution  in  framing  the  commerce  clause  is,  I  sug- 
gest in  all  humility,  not  historically  accurate.  The  fact  is,  the  convention 
of  Virginia  and  Maryland  was  called  —  the  convention  that  led  up  to 
the  subsequent  convention  which  adopted  the  Constitution  of  the  United 
States  —  for  the  purpose  of  trying  to  arrive  at  some  method  of  settling 
the  conflicts  that  arose  as  to  the  commerce  on  the  rivers  and  waters  that 
divided  those  two  States  and  to  arrive  at  some  method  by  which  States 
would  not  be  able  to  hamper  and  handicap  the  commerce  of  other  States. 


CENTRALIZATION  807 

As  a  result  of  that  convention  came  the  national  convention  that  adopted 
the  Constitution.  Now,  the  commerce  clause  has  two  provisions  in  it. 
They  are  in  the  same  sentence,  but  they  are  distinct  in  the  sense  that 
they  were  put  into  the  Constitution.  One  of  them  relates  to  the  power 
of  Congress  over  foreign  commerce;  the  other  relates  to  the  power  of 
Congress  over  interstate  commerce.  It  was  desired  at  that  time  that  the 
United  States  of  America  might  have  a  weapon  that  she  might  use  against 
England,  who  was  then  fighting  her  commerce  on  the  high  seas.  It  was 
expected  that  the  United  States  of  America  should  use  its  power  through 
that  provision  against  other  nations,  but  that  part  of  it  which  relates  to 
the  States  was  put  into  the  Constitution  for  the  purpose  of  preventing  the 
States  from  discriminating  against  the  commerce  of  their  sister  States. 
It  was  put  in  there  for  the  purpose  of  keeping  commerce  free,  not  for 
the  purpose  of  shackling  it.  Yet  to-day,  and  for  many  years  past,  it  has 
been  made  the  pretext  for  giving  power  to  the  National  Government  to 
hamper  and  control.  Now,  I  trust  I  am  not  a  man  who  looks  backward. 
I  hope  I  am  not  speaking  of  the  tender  grace  of  a  day  that  is  dead,  but 
I  do  feel  that  half  of  the  evils  that  confront  the  country  to-day  confront 
it  because  we  have  disregarded  the  fundamental  theory  of  our  Govern- 
ment. I  believe  the  way  to  govern  best  is  not  only  to  govern  least,  but  to 
govern  as  near  as  possible  at  home.  [Applause.] 

That  is  my  kind  of  Democracy.  That  is  the  reason  I  am  where  I  am. 
If  we  could  make  the  people  of  the  States  realize  that  of  necessity  under 
.  the  Constitution  95  per  cent  of  the  things  that  relate  to  life,  liberty,  and 
property  belong  to  the  States,  and  unless  we  change  the  organic  law  must 
remain  with  the  States  —  if  we  could  make  them  realize  that  therefore 
they  must  make  their  own  State  governments  effective  in  order  to  deal 
in  nine  cases  out  of  ten  with  those  matters  that  affect  life,  liberty,  and 
property,  we  might  hope  to  solve  our  problems.  But  what  has  been  the 
result?  Largely  as  a  heritage  of  the  civil  war,  largely  as  a  result  of  the 
acceleration  that  was  given  to  the  national  power  due  to  the  emergency 
that  that  conflict  brought  about,  we  have  had  the  spectacle  that  when- 
ever a  condition  requiring  a  remedy  arose  in  a  State,  the  people,  instead 
of  trying  to  solve  it  there,  come  to  the  National  Government  and  under- 
take to  have  the  power  under  the  Constitution  stretched  so  as  to  bring 
the  matter  within  the  national  domain. 

The  people,  simply  because  the  National  Government  seemingly  acts, 
think  that  it  always  acts  better.  They  think  it  acts  better  because  they 
know  less  about  its  actions.  They  get  a  knowledge  of  what  it  does  simply 
from  the  men  who  do  it.  The  newspaper  accounts  which  go  out  nine 
times  out  of  ten  necessarily  go  from  the  very  source  that  has  done  the 
act  which  is  to  be  reviewed  by  the  people.  Naturally  the  report  going 
out  is  favorable,  and  they  get  the  notion  that  if  the  action  is  by  the  Na- 
tional Government  it  will  be  better  action.  Maybe  it  is  better,  but, 
gentlemen,  there  is  no  reason  why  it  should  be  as  good.  There  is  not  a 


8o8  AMERICAN  FEDERAL   GOVERNMENT 

power  contained  in  the  Constitution  of  the  United  States  in  regard  to 
most  questions  arising  that  is  not  contained  in  even  greater  measure 
within  the  State.  Tell  me  that  States  composed  of  millions  of  people, 
bigger  than  some  of  the  great  nations  of  the  world,  are  not  able  to  have 
proper  officers,  capable  of  proper  legislation,  solving  these  problems, 
and  what  is  equally  important,  capable  of  enforcing  the  law!  I  will  not 
admit  it. 

This  tendency  toward  centralization  has  gone  on  until,  from  having 
started  out  a  hundred  years  ago  in  fear  of  the  Executive,  we  have  become 
afraid  of  the  legislative  bodies,  from  a  fear  of  the  National  Government, 
to  now  a  total  disregard  of  State  power.  The  people  have  a  distinct  con- 
tempt for  the  State  legislatures,  and  they  have  more  or  less  contempt  for 
the  National  Legislature.  It  has  become  so  that  a  member  of  the  State 
legislature  has  to  almost  prove  aliundi  that  he  is  an  honest  man  and  a 
man  of  good  ability.  Gentlemen,  you  get  the  service  you  expect.  The 
people  have  restricted  them;  they  have  hampered  them.  Recent  State 
constitutions  have  restricted  the  meetings  of  the  legislatures  to  once  in 
two  years.  They  have  restricted  that  meeting  to  sixty  days  or  some  short 
period.  In  a  special  session  they  are  restricted  to  considering  what  the 
governor  desires  shall  be  considered.  All  these  are  indicative  of  the  fact 
that  the  people  are  fearful  of  these  bodies.  The  result  is  we  have  brought 
on  this  floor  great  questions  not  properly  here,  and  we  have  to  spend  nine- 
tenths  of  our  time  in  determining  not  what  we  ought  to  do,  but  how  we  can 
do  it.  If  the  theory  of  the  National  Government  being  not  only  supreme, 
but  all-embracing,  if  the  theory  as  voiced  by  the  President  in  his  message 
is  right,  then  I  for  one  agree  to  the  suggestion  made  in  that  message  when 
he  said  that  if  we  can  not  do  these  things,  if  we  can  not  take  charge  of 
this  insurance  matter,  we  ought  to  amend  the  Constitution.  I  go  further 
and  say  that  if  we  are  going  to  attempt  this  and  similar  things,  if  we 
must  take  care  of  them  here,  then  I  am  in  favor  of  abolishing  State  gov- 
ernment. I  would  a  great  deal  rather  see  this  body  dealing  with  what 
it  should  do  instead  of  always  having  to  consider  whether  it  can  do  it. 
That  is  common  sense.  If  this  idea  of  concentration  is  right,  if  centrali- 
zation of  power  is  right,  then  let  us  go  on  and  carry  it  out.  It  is  true  we 
will  be  giving  the  lie  to  the  theory  which  has  prevailed  in  America  since 
the  beginning;  it  is  true  we  will  be  running  in  the  face  of  Anglo-Saxon 
history. 

If  it  is  true  the  time  is  coming  when  we  are  to  have  such  power  not 
only  given  the  National  Government,  but  are  also  to  have  given  to  the 
executive  arm  of  the  Government  the  right  to  handle  everything  under 
the  sun,  from  football  up,  let  us  abolish  the  State  government  outright 
and  make  a  clean  job  of  it.  Look  how  this  idea  of  centralization  is 
working  right  here  among  us.  Look  how  it  is  working  with  the  two 
bodies  of  Congress.  One  body,  because  it  was  smaller  and  because  it 
had  in  a  sense  executive  power,  in  that  it  could  pass  upon  Presidential 


CENTRALIZATION  809 

appointments,  has  grown  and  grown,  until  to-day  this  body  is  practically 
ignored,  and  we  had  the  spectacle  a  few  moments  ago  of  that  body,  in 
plain  contravention  of  the  Constitution,  undertaking  to  pass  a  bill  that 
only  could  originate  here.  It  is  simply  a  further  tendency  toward  central- 
ization. You  are  not  only  concentrating  the  States  out  of  their  power, 
but  now  you  are  beginning  to  concentrate  the  different  bodies  of  the 
National  Government  out  of  theirs.  Against  that,  as  a  Democrat,  as  a 
believer  in  the  history  of  my  nation,  I  protest.  It  is  for  this  reason  I 
have  taken  advantage  in  this  body  when  the  President's  message  was 
up  for  discussion  to  voice  my  protest.  I  had  been  in  the  hope  that  some 
man  abler  than  I,  some  man  longer  in  the  service  of  the  House,  might 
have  felt  called  upon  to  do  it,  but  in  the  absence  of  that  I  felt  I  should 
be  untrue  to  those  motives  which  actuate  me,  to  the  position  I  occupy 
in  this  House,  if  I  did  not  protest. 

Mr.  DRISCOLL.     Does  the  gentleman  yield  for  one  question? 

Mr.  SHERLEY.     Certainly. 

Mr.  DRISCOLL.  I  have  enjoyed  the  address  so  far  very  much,  but  I 
wish  to  ask  the  gentleman  if  it  is  not  true,  in  his  judgment,  that  gentle- 
men from  the  Southern  States  —  Democrats  from  the  Southern  States 
—  have  a  marked  tendency  to  yield  up  their  ideas  of  State  rights  in  order 
that  their  States  or  their  districts  may  get  some  benefits  or  emoluments  out 
of  the  United  States  Government?  Is  not  that  the  marked  tendency 
with  Democrats  in  the  House? 

Mr.  SHERLEY.  The  gentleman  has  asked  me  a  frank  question.  I  will 
answer  it  frankly.  It  is  true  that  in  the  past  the  ark  of  the  covenant  of 
local  self-government  has  rested  among  the  Democrats  of  the  South.  It 
is  true  to-day,  unfortunately,  that  there  are  some  of  them,  breaking  the 
traditions,  as  I  conceive  them,  of  the  party  and  of  the  country,  who  have 
wandered  away  after  the  fleshpots  of  Egypt.  But,  gentlemen,  what  is 
true  in  one  instance  on  this  side  of  the  House  is  true  in  nearly  all  instances 
of  that  side  of  the  House.  [Applause  on  the  Democratic  side.]  That  is 
my  answer  to  the  gentleman. 

I  realize  that  in  a  large  measure  I  stand  in  some  particulars  alone  on 
the  floor  even  as  a  "voice  crying  in  the  wilderness."  I  realize  that  the 
American  people,  from  having  been  a  very  sober  people,  slow  to  form 
an  opinion,  have  become  a  mercurial  people,  with  opinions  over  night. 
I  realize  that  in  men's  memory  history  goes  back  to  the  last  edition  of 
the  paper  of  the  day  before,  and  their  view  of  the  future  goes  forward 
to  the  first  edition  of  the  day  after.  I  realize  that  any  clamor  that  happens 
to  be  loud  enough  may  not  only  get  the  ear  of  individual  Members,  but 
it  may  get  even  the  ear  of  the  Executive  of  the  nation ;  and  because  there 
is  now  a  clamor  we  have  sent  to  us  a  message  saying  that  we  must  try 
and  find  a  way  in  and  out  of  the  provisions  of  the  Constitution  to  do 
certain  things,  and  then  if  we  can  not  do  them  we  must  do  away  with 
the  Constitution  in  order  to  do  them. 


8io  AMERICAN  FEDERAL   GOVERNMENT 

The  message  makes  the  surprising  statement  that  the  States  are  unable 
to  control  insurance.  On  what  theory  is  that  made?  Does  not  every 
man  know  that  if  you  had  the  right  sort  of  law,  and,  what  is  better  still, 
the  right  sort  of  enforcement  of  the  law,  in  the  States  that  the  power  exists 
there  to  control  insurance  and  control  nine-tenths  of  our  other  troubles  ? 

The  President  speaks  of  the  fact  that  overcapitalization  is  the  worst 
evil  in  connection  with  big  corporations.  Does  not  every  man  who  is 
the  least  of  a  lawyer  know  that  it  is  in  the  power  of  a  State  that  creates 
the  corporation  to  prevent  overcapitalization?  It  can  put  all  of  the 
restrictions  upon  it  that  it  pleases. 

Now,  it  may  be  a  sufficient  answer  to  you  —  it  is  not  a  sufficient  answer 
to  me  —  to  tell  me  the  State  has  not  done  it.  I  say  what  we  must  do  in 
this  country  is  to  awaken  the  people  to  a  realization  of  that  power  at 
home ;  demand  that  a  man  shall  exhaust  the  power  that  is  given  to  the 
States  before  he  comes  to  the  nation.  Why,  if  the  President's  theory  is 
true,  then  there  is  not  a  city  in  the  Union  that  should  not  be  put  under 
the  control  of  the  State  government,  because  they  have  all  been  notori- 
ously badly  managed.  Now,  if  the  fact  that  they  are  badly  managed, 
if  the  fact  that  the  people  of  the  city  do  not  manage  them  right,  do  not 
elect  the  proper  sort  of  officials  to  the  common  councils,  is  sufficient 
reason,  then  by  a  parity  of  argument  the  State  should  take  control  of  the 
cities,  and  you  should  have  them  managed  by  your  legislatures  and  the 
governors  of  your  States.  You  only  need  to  examine  the  proposition 
to  see  how  it  strikes  at  the  fundamentals  of  this  Government.  Take  the 
history  of  England  and  see  what  has  been  done  in  her  city  governments. 
It  is  true  that  Parliament  is  all  powerful,  and  always  has  been,  but  it 
is  also  true  that  there  is  more  local  government  there  to-day  than  there 
is  here,  despite  our  boast.  They  send  men  of  the  highest  ability  to  the 
common  councils  of  their  cities;  put  in  men  capable  of  occupying  any 
position  in  any  legislative  body,  and  as  a  rule  all  of  these  cities 
are  efficiently  and  capably  managed,  and  they  do  not  need  to  appeal  to 
Parliament. 

If  the  cities  and  the  States  should  send  into  public  life  the  right  sort 
of  men,  making  it  worth  while  for  a  man  to  be  independent,  and  keeping 
him  in  his  position  when  he  does  show  independence  —  if  they  would 
do  that,  you  would  find  nine-tenths  of  the  questions  that  trouble  the 
Government  would  no  longer  be  sent  up  here  to  trouble  us.  Every  man 
in  this  House  knows  that  the  size  of  this  House,  the  amount  of  business 
that  comes  here,  practically  prevents  real  judicial  consideration  of  ques- 
tions. [Applause.]  The  day  has  gone  by  when  the  House  of  Representa- 
tives can  intelligently  do  affirmative  work.  There  is  no  man  here  but 
who  in  his  heart  of  hearts  knows  this  to  be  true.  What  has  been  the 
result?  You  send  important  measures  to  a  committee;  you  put  into 
the  hands  of  a  few  men  the  power  to  bring  in  bills,  and  then  they  are 
brought  in,  with  an  ironclad  rule,  and  rammed  down  the  throats  of  Mem- 


CENTRALIZATION  811 

bers,  and  then  those  measures  are  sent  out  as  being  the  deliberate  judg- 
ment of  the  Congress  of  the  United  States ;  but  no  deliberate  judgment 
has  been  expressed  by  any  man.  Now,  if  you  are  going  to  bring  in 
additional  to  that  other  problems  that  you  think  should  receive  considera- 
tion, where  are  you  going  to  end?  Will  it  not  have  a  tendency  to  end 
altogether  in  a  government  of  bureaus  ?  No  man  that  will  be  frank  in 
the  statement  of  his  opinion  but  knows  that  that  is  true.  We  all  admit 
and  we  all  admire  the  ability  of  the  President;  we  realize  his  purpose 
is  a  high  and  lofty  one,  and  yet  we  permit  ourselves  to  sit  silent,  voicing  no 
protest  against  a  message  to  Congress  that  contains  more  of  centraliza- 
tion than  any  other  message  that  was  ever  written  to  the  American 
people.  [Applause.] 

Mr.  GROSVENOR.  Will  it  disturb  the  gentleman  if  I  make  a  suggestion 
or  two  along  the  line  of  his  argument? 

Mr.  SHERLEY.    Not  at  all. 

Mr.  GROSVENOR.  Has  the  gentleman  from  Kentucky  considered  in 
his  evident  study  of  this  question  how  you  would  establish  two  jurisdic- 
tions, two  supreme  authorities  —  one  supreme  in  the  State  and  one 
supreme  in  the  United  States  —  so  as  to  administer  in  the  form  of 
regulation  or  taxation  or  prescription  the  duty  of  a  corporation,  it 
being  an  instrumentality  of  the  States  in  some  industry  or  in  any  other 
branch  or  business,  so  as  to  have  both  jurisdictions  operating  upon  that 
corporation  at  the  same  time;  and  would  it  necessarily  in  the  long  run 
oust  the  State  jurisdiction  absolutely  and  put  the  whole  power  in  the 
General  Government?  I  am  on  the  side  of  the  gentleman;  I  am 
a  Democrat  in  the  matter  of  the  rights  of  the  States  to  control  their 
own  local  institutions,  and  have  always  been  so.  [Loud  applause  on 
the  Democratic  side.] 

Mr.  SHERLEY.  I  am  glad  to  have  such  able  support,  and  in  answer 
to  the  gentleman's  question  I  will  also  try  to  be  as  frank  as  the  gentleman 
was  in  propounding  his  question.  No  lawyer  —  no  real  lawyer  —  who 
has  ever  advanced  beyond  the  mere  citation  of  cases  and  gone  into  the 
philosophy  of  the  law  but  what  knows  that  the  problem  offered  by  a  dual 
system  of  government  is  one  of  the  most  difficult  problems  ever  offered 
to  a  people.  And  a  further  difficulty  in  that  problem  has  been  caused 
in  large  part  by  the  extension  of  national  control  to  the  exclusion  of  State 
control,  because  of  the  temporary  inefficiency  of  State  governments. 
But  the  main  idea  that  I  wish  to  convey  is  this :  Not  that  we  do  not  realize 
the  great  inherent  difficulty,  that  we  do  not  recognize  that  there  are  many 
questions  that  lie  on  the  border  line  of  the  jurisdiction  of  the  two  gov- 
ernments, questions  about  which  men  must  differ  and  about  which  the 
courts  have  differed,  and  that  when  these  questions  come  up  it  must 
follow  that  one  or  the  other  of  these  governments  will  get  the  jurisdic- 
tion to  the  exclusion  of  the  other,  according  to  the  trend  of  the  times, 
and  frequently  the  practicability  of  its  dealing  with  the  question,  but 


812  AMERICAN   FEDERAL   GOVERNMENT 

that  as  to  those  things  that  are  clearly  within  the  State's  power  and  can 
be  controlled  by  the  State,  that  when  no  effort  is  made  by  the  State  to 
remedy  the  evil  that  that  neglect  should  not  be  made  an  argument  and 
an  excuse  for  this  Government,  the  National  Government,  entering  the 
domain.  Now,  here  is  a  practical  illustration  in  the  insurance  matter. 
Here  is  a  matter  that  has  come  to  the  attention  of  the  people  —  this  cor- 
ruption, this  wrong-doing  —  by  virtue  of  a  State  investigation.  Our 
States  are  just  beginning  to  awake  to  a  long-neglected  duty,  beginning  to 
investigate  and  to  formulate  laws  to  control  the  situation.  I  undertake 
to  say  that  if  persevered  in  the  States  will  be  successful.  The  condition 
arose  simply  because  the  States  have  been  neglectful  of  their  duties  in  the 
past,  and  now  we  are  told  that  we  should,  in  advance  of  any  results  grow- 
ing out  of  the  States'  activity,  take  the  matter  from  them,  notwithstand- 
ing the  evil  that  inherently  follows  an  entrance  by  the  National  Govern- 
ment into  the  State  domain.  It  is  not  only  true  physically  and  mentally, 
but  true  governmentally,  that  a  power  unused  becomes  weakened  and 
will  in  time  be  destroyed. 

Let  any  part  of  the  anatomy  of  man  cease  to  be  exercised  and  used 
and  that  part  goes  into  decay,  until  it  finally  disappears.  Let  the  quality 
of  local  government,  let  that  power  which  rests  in  the  States,  fail  to  be 
used ;  let  the  people  forget  that  they  have  in  their  own  hands  the  power 
to  remedy  evils ;  let  them  forget  that  after  all  it  depends  upon  the  moral 
atmosphere  of  the  people  themselves,  their  desire  to  enforce  the  laws 
that  they  pass  —  let  them  forget  that  and  come  constantly  to  the  National 
Government  for  aid,  come  up  here  away  from  the  place  of  the  evil,  and 
you  will  find  that  the  ability  to  solve  problems  at  home  will  die  because 
of  disuse.  [Applause  on  the  Democratic  side.]  Gentlemen,  we  make 
too  many  laws ;  we  enforce  too  few.  The  trouble  is  that  out  of  hypocrisy, 
out  of  cant,  which  seems  to  be  a  part  and  an  attribute  of  the  Anglo-Saxon, 
we  are  willing  to  pass  laws  that  we  do  not  believe  in.  There  comes  a 
clamor,  and  we  yield  to  the  clamor  for  fear  of  our  jobs,  and  we  put  the 
law  on  the  statute  book  when  we  do  not  think  it  ought  to  be  there.  Even 
although  it  remedies  a  particular  evil,  we  know  that  it  carries  in  its  train 
many  other  evils.  Then  having  put  it  there  we  wink  at  its  being  ignored. 
Why,  gentlemen,  we  pass  every  year  numerous  temperance  laws  and 
then  permit  them  to  be  dead  letters,  because  we  have  been  cowards  and 
were  afraid  not  to  pass  them,  and  yet  do  not  want  them  enforced.  If  the 
people  will  enforce  the  law,  if  we  can  have  the  enforcement  of  the  law 
against  the  high  as  well  as  the  low,  we  will  solve  many  of  our  problems 
without  any  need  for  new  legislation.  Nothing  has  come  out  in  the 
insurance  investigation  that  the  State  of  New  York  can  not  handle,  and 
most  of  the  problems  can  be  handled  on  the  criminal  side  of  the  law 
docket.  [Applause.]  It  is  a  question  whether  the  people  of  New  York 
will  have  the  courage,  but  if  they  do  not  have  it  that  is  no  reason  why 
we  should  take  up  their  burden.  We  must  send  back  word  to  them, 


CENTRALIZATION  813 

"  You  must  solve  your  problems  at  home.    If  you  do  not  do  it,  they  will 
not  be  solved."     [Applause.] 

Mr.  Chairman,  I  reserve  the  balance  of  my  time. 


Mr.  COCKRAN.  This  debate  has  taken  a  range  far  beyond  a  mere 
question  of  procedure  in  the  House.  It  has  touched  a  most  important 
question  of  Federal  jurisdiction.  It  has  done  more.  It  presents  a  ques- 
tion affecting  the  very  existence  of  republican  government  and  our 
power  to  take  effective  action  for  its  preservation. 

A  most  interesting  contribution  to  the  discussion  has  just  been  con- 
cluded by  the  gentleman  from  Kentucky  [Mr.  Sherley].  With  the  ob- 
ject which  he  had  in  view  I  sympathize  most  heartily.  The  method  by 
which  he  pursues  it  I  think  is  open  to  question.  The  gentleman  from 
Kentucky  [Mr.  Sherley]  has  bemoaned  the  decline  of  State  governments 
and  the  decay  of  representative  bodies,  including  this  one  —  two  features 
of  our  evolution  which  I  believe  to  be  ominous  in  the  last  degree.  But 
the  gentleman  says  that  he  is  opposed  to  any  use  of  the  taxing  power 
as  a  means  of  enforcing  authority  by  this  House  over  important  ques- 
tions affecting  the  public  welfare.  So  far  as  I  could  understand  his 
argument,  he  stated  that  while  this  taxing  power  had  been  the  effective 
weapon  by  which  representative  bodies  had  established  their  authority 
in  the  past,  for  some  reason  or  other  not  made  quite  clear  to  me,  and 
I  fear  not  quite  clear  to  the  House,  it  was  not  proper  or  judicious  at  this 
day  to  invoke  it  for  the  preservation  of  the  authority  which  had  been 
established  by  its  exercise.  I  have  observed  through  all  this  discussion 
on  the  part  of  gentlemen  who  have  opposed  the  reference  of  this  ques- 
tion to  the  Committee  on  Ways  and  Means  a  disposition  to  treat  the 
taxing  power  of  this  body  as  though  it  were  a  mere  power  conferred  by 
law  on  some  city  or  village  government  to  levy  an  assessment  for  the 
support  of  a  municipal  department.  It  is  important  and,  I  think,  es- 
sential to  remind  gentlemen  that  this  power  of  taxation  vested  in  the 
House  of  Representatives  by  the  Constitution  is  the  weapon  by  which 
all  the  importance  of  legislative  bodies  has  been  established. 

If  the  conception  of  the  gentleman  from  Kentucky  [Mr.  Sherley]  and 
other  gentlemen  who  have  spoken  on  this  subject  be  correct,  then  that 
provision  of  the  Constitution  which  places  in  our  hands  the  exclusive 
right  to  originate  revenue  bills  is  a  mere  idle  expression  —  superfluous, 
meaningless,  unimportant.  Sir,  I  do  not  believe  any  line  of  the  Con- 
stitution is  either  superfluous  or  meaningless.  There  are  weighty  rea- 
sons why  that  power  has  been  bestowed  on  us.  Sir,  I  think  anybody 
familiar  with  the  debates  in  the  convention  where  our  Constitution  was 
framed  will  concede  that  through  all  the  discussions  it  was  assumed 
that  this  body  would  always  be  the  important  feature  of  our  Govern- 
ment, and  its  importance  in  the  judgment  of  the  framers  was  assured 


814  AMERICAN   FEDERAL   GOVERNMENT 

when  the  taxing  power  was  placed  in  our  hands.  If  we  are  but  a  board 
of  aldermen  to  decide  whether  the  rates  levied  to  support  some  city  or 
village  government  should  be  i,  2,  3,  or  4  per  cent  on  the  assessed  value 
of  all  its  property,  then  the  power  to  originate  revenue  bills  might  have 
been  placed  at  the  other  end  of  the  Capitol  without  in  the  slightest  de- 
gree affecting  the  importance  of  this  body.  But,  sir,  because  all  the 
successful  battles  for  liberty  have  been  fought  with  that  weapon,  it 
was  intrusted  to  us  by  the  wise  men  who  established  this  Government, 
in  the  belief  that  privileges  which  heroes  had  won  in  the  field  patriots 
would  conserve  in  the  council  chamber.  That  power  of  taxation  we 
have  a  right  to  exercise  absolutely  according  to  our  own  discretion.  As 
we  use  it  our  consequence  and  our  dignity  will  stand  in  the  structure 
of  our  Government.  The  gentleman  from  Kentucky  [Mr.  Sherley]  be- 
moans very  properly  the  fact  that  legislative  bodies  have  sunk  into  con- 
tempt while  the  body  at  the  other  end  of  this  Capitol,  which  has  some 
share  of  executive  power,  has  risen  steadily  in  importance,  and  he  as- 
signs the  reason  for  it  correctly.  The  reason  is  that  the  Senate  of  the 
United  States  exercises  to  the  full  every  function  and  power  the  Con- 
stitution has  placed  in  its  hands.  Every  day  witnesses  not  a  recession 
or  concession,  but  a  new  and  further  assertion  of  authority.  Only  this 
morning  we  in  this  Chamber  felt  bound  to  rise  unanimously  and  de- 
clare that  this  last  intrenchment  of  our  power,  this  exclusive  right  to 
originate  revenue  bills,  should  not  be  broken  down  without  at  least 
a  protest  from  ourselves.  Yet  the  gentleman  from  Kentucky  [Mr. 
Sherley],  while  recognizing  and,  indeed,  deploring  the  growth  of  the 
Senate  and  bemoaning  the  decay  of  the  House  of  Representatives,  tells 
us  in  the  same  breath  that  he  disapproves  any  use  of  the  one  power, 
the  one  weapon,  by  which  our  consequence  can  be  established. 

Mr.  SHERLEY.     Will  the  gentleman  yield? 

The  CHAIRMAN.     Does  the  gentleman  from  New  York  yield? 

Mr.  COCKRAN.     Certainly. 

Mr.  SHERLEY.  I  differ  simply  because  I  do  not  believe  that  is  the 
only  power  by  which  the  House  can  assert  its  dignity  and  do  not  think 
the  makers  of  the  Constitution  intended  it  should  be  the  only  power. 

Mr.  COCKRAN.  Mr.  Chairman,  I  suppose,  of  course,  that  was  the 
gentleman's  view  or  he  would  not  have  made  the  speech  he  did  upon 
the  floor,  but  the  fact  remains  that  he  has  bemoaned  the  waning  dignity 
of  this  body  and  he  has  deplored,  or,  I  believe,  criticised,  the  growth  of 
the  other.  My  object  now  is  simply  to  supply  an  explanation  of  what 
he  considers  a  calamity  and  to  suggest  a  method  by  which  it  can  be  re- 
paired. With  singular  force  he  declared  that  powers  which  are  not 
exercised  are  powers  which  are  declining,  that  powers  unused  are  perish- 
ing powers.  The  power  to  arrest  our  decay  and  reestablish  our  conse- 
quence is  ours,  yet  that  is  the  power  which  the  gentleman  even  now 
declares  is  not  a  proper  or  legitimate  one  to  be  used  in  maintaining  our 


CENTRALIZATION  815 

authority  and  our  dignity.  While  that  power  is  vigorously  asserted 
there  is  no  subject  within  Federal  control  on  which  we  may  not  exer- 
cise the  dominant  influence,  aye,  sir,  that  we  were  not  intended  to 
dominate  by  the  framers  of  our  Constitution.  The  mere  grant  of  this 
exclusive  right  to  originate  revenue  bills  shows  that  we  were  intended 
to  be  the  principal  feature  of  this  Government.  If  we  have  declined 
and  decayed,  it  is  not  for  lack  of  power,  but  through  failure  to  exercise 
the  powers  which  are  ours.  The  power  of  the  English  House  of  Com- 
mons theoretically  is  very  little.  Theoretically  it  is  vastly  inferior  to 
that  of  the  Lords;  practically  it  is  paramount  through  its  control  of 
the  purse.  Under  the  feudal  system  representative  bodies  had  no  power 
except  the  right  to  levy  taxes.  They  had  no  right  even  to  consider  any 
other  question  unless  it  was  expressly  submitted  by  the  sovereign  through 
officers  of  his  own  selection  and  household,  known  as  "  lords  of  the 
articles." 

The  gentleman  deplored  a  recent  tendency  of  State  constitutions  to 
limit  subjects  which  State  legislatures  can  consider  when  called  in  extra 
session  to  those  which  the  governor  might  submit  to  them.  You  see, 
sir,  there  is  nothing  original  in  personal  government.  There  is  nothing 
original  in  the  forms  by  which  distrust  of  popular  government  seeks 
expression.  That  tendency,  which  the  gentleman  deplored,  is  but  a 
revival  here  in  this  land  of  the  power  exercised  through  lords  of  the 
articles  under  feudal  institution,  when  the  sovereign  treated  the  legisla- 
ture, parliament,  or  council  simply  as  a  body  whose  advice  he  might 
ask  on  certain  matters,  but  whose  authority,  except  upon  taxation,  he 
did  not  concede.  The  power  over  the  purse  alone  was  always  conceded 
to  the  representatives  of  the  people ;  and  yet  upon  this  slender  founda- 
tion the  stately  structure  of  the  British  House  of  Commons  has  been 
erected,  which  dominates  the  entire  English  system,  and  which  fur- 
nished the  framers  of  this  Constitution  with  a  model  for  the  establish- 
ment of  this  body. 

Mr.  SHERLEY.     May  I  interrupt  the  gentleman  again? 

Mr.  COCKRAN.     Certainly. 

Mr.  SHERLEY.  Is  it  not  true  the  use  of  the  power  over  the  purse  was 
in  respect  to  appropriations,  and  not  to  do  an  arbitrary  and  unconsti- 
tutional thing? 

Mr.  COCKRAN.  No,  sir;  the  gentleman  must  study  history  a  little 
more  carefully.  On  the  contrary,  the  power  which  was  used  most  fre- 
quently and  most  effectively  was  the  very  power  of  which  this  House 
has  deprived  itself  by  special  rule,  the  power  to  impose  conditions  on 
appropriations,  to  impose  taxes  on  domains,  privileges,  monopolies, 
and  other  features  of  their  political  system  which  they  considered  dan- 
gerous to  the  prosperity  or  the  liberty  of  the  citizen. 

Mr.  SHERLEY.  Does  not  the  gentleman  know  that  the  National 
Government  has  no  police  power  and  it  has  been  so  declared,  and  does 


8i6  AMERICAN  FEDERAL   GOVERNMENT 

the  gentleman  not  believe  that  the  use  of  the  taxing  power  for  police 
purposes  is  unconstitutional  to-day? 

Mr.  COCKRAN.  Mr.  Chairman,  I  am  not  conceding  that  this  is  a 
police  power.  The  gentleman  undertakes  to  anticipate  the  point  at 
which*  I  am  aiming,  and  being  doubtless  innocent  of  the  course  of  rea- 
soning which  I  am  pursuing,  is  naturally  ignorant  of  the  end  which  I 
seek  to  attain.  [Laughter.] 

I  trust  the  gentleman  will  possess  his  soul  in  patience  and  at  the  end 
of  a  very  few  minutes  he  will  understand  precisely  the  character  of  the 
proposition  which  I  am  seeking  to  establish.  I  say,  Mr.  Chairman, 
that  this  body  now  possesses  sufficient  power  to  establish  its  consequence 
and  its  predominance  if  we  choose  to  exercise  it.  There  is  but  one 
change,  one  amendment  that  in  my  judgment  could  possibly  increase 
its  efficiency  in  legislation  or  its  capacity  to  defend  itself,  and  that  con- 
cerns simply  the  term  for  which  its  Members  are  elected.  Where  a 
Member  is  chosen  practically  for  two  sessions  and  by  the  operation  of 
our  constitutional  system  one  session  must  be  held  after  the  election  of 
his  successor,  it  necessarily  happens  that  the  very  day  on  which  he  takes 
his  seat  upon  this  floor  and  begins  the  discharge  of  his  duties  he  is  at 
once  thrust  into  the  throes  of  a  contest  for  reelection.  No  man  can  per- 
form his  duty  here  wholly  and  efficiently  when  every  day  his  mail  is 
charged  chiefly  with  information,  representations,  remonstrances,  and 
appeals  that  concern  not  the  public  business  at  hand,  but  the  prospect 
before  him  in  his  own  district.  [Applause.]  If  this  democratic  body 
is  ever  to  acquire  and  exercise  the  measure  of  power  which  the  builders 
of  this  Government  believed  it  should  possess  in  order  that  this  constitu- 
tional system  may  be  safe  and  prosperous,  there  should  be  at  least  one 
or  two  sessions  in  which  Members  could  devote  themselves  to  their  public 
duties  free  from  the  distraction  of  a  campaign  for  reelection.  Apart 
from  that  there  is  no  effective  power  the  Constitution  could  bestow  on 
us  that  it  has  not  already  bestowed  when  it  gave  us  the  taxing  power. 

If  we  have  no  importance,  it  is  not  because  we  lack  power,  but  be- 
cause we  have  put  away  the  great  power  which  has  been  conferred  upon 
us.  And  strange  as  it  may  seem,  the  gentlemen  who  are  the  most  solic- 
itous about  the  Constitution,  the  gentleman  who  describes  that  instru- 
ment as  the  sacred  ark  of  the  covenant  —  I  think  I  am  using  the  exact 
words  of  my  friend  from  Kentucky  —  condemns  as  vicious  a  use  of  its 
most  important  feature,  the  one  on  which  depends  the  importance  of 
the  body  of  which  he  is  already  a  distinguished  member  and  certain  in 
the  near  future  to  become  one  of  its  most  brilliant  ornaments.  [Applause.] 

Now,  Mr.  Chairman,  the  suggestion  which  I  would  like  to  place  be- 
fore this  committee  is  that  there  are  various  provisions  of  the  Constitu- 
tion which  may  be  invoked  to  deal  effectively  with  the  abuses  grown 
out  of  the  maladministration  of  these  insurance  corporations.  But 
before  we  consider  the  remedy  which  should  be  applied,  let  us  for  a 


CENTRALIZATION  817 

moment  consider  the  nature  of  the  difficulty  which  confronts  us.  I  be- 
lieve that  on  any  subject  fairly  within  the  authority  of  the  Federal 
Government  —  any  subject  over  which  the  Federal  Government  has 
jurisdiction  —  this  House  has  the  right  to  exercise  the  taxing  power  in 
any  way  it  pleases  for  the  maintenance  of  its  own  authority  and  the 
enforcement  of  its  own  views  as  well  as  for  the  general  welfare  of  all  our 
citizens. 

For  no  other  purpose  was  the  taxing  power  —  the  right  to  originate 
revenue  bills  —  confided  to  us.  I  am  perfectly  willing  to  admit  that 
we  should  not  undertake  to  establish  jurisdiction  by  extending  arbi- 
trarily the  taxing  power  into  fields  not  properly  belonging  to  the  dominion 
of  Federal  authority. 

Mr.  SHERLEY.    How  does  the  gentleman  explain  the  case  of  Dewitt  ? 

Mr.  COCKRAN.  I  beg  the  gentleman  will  not  interrupt  now  by  asking 
me  to  explain  special  cases.  I  entreat  the  gentleman  to  realize  that, 
after  all,  he  is  but  one  Member  of  this  House,  though  probably  the  best 
among  us  all,  and  I  am  addressing  a  collective  body  of  which  at  least 
250  Members  are  present.  I  can  not  in  the  course  of  this  discussion  meet 
every  possible  difficulty  that  may  arise  in  the  gentleman's  mind.  If  he 
will  allow  me  to  finish,  and  make  note  in  the  meantime  of  any  question 
that  he  chooses  to  ask,  at  the  end  I  will  be  glad  to  spend  an  hour  or  two 
hours  in  cheerful  and,  I  hope,  improving  colloquy  with  him.  [Laughter.] 

Now,  a  more  important  matter,  Mr.  Chairman,  than  satisfying  the 
scruples,  or  shall  I  say  attempting  to  follow  the  interesting  speculations 
of  the  gentleman  from  Kentucky,  is  a  definite  statement  of  the  precise 
question  presented  to  this  House. 

We  have  heard  much  about  the  difficulty  of  dealing  with  the  matter 
of  insurance.  From  the  beginning  it  seems  to  have  been  assumed  that 
the  existence  of  large  corporations,  each  prosecuting  its  business  in 
several  States,  and  all  the  corruption  and  vice  in  the  management  which 
have  recently  been  laid  there,  are  in  some  way  or  other  inherent  in  every 
insurance  system,  and  that  the  only  reform  possible  is  to  provide  some 
means  of  regulating  them.  The  gentleman  from  Kentucky  [Mr.  Sherley] 
pleads  for  a  State  regulation ;  the  gentleman  from  Illinois  [Mr.  Mann], 
if  I  understand,  pleads  for  a  Federal  regulation.  Now,  I  think  it  is 
possible  to  exercise  the  power  of  this  General  Government  so  as  to  re- 
move completely  the  conditions  which  have  produced  the  sinister  fruits 
of  corruption  which  we  all  deplore.  If  that  can  be  accomplished,  then 
it  is  clear  no  regulation  of  a  Federal  character  anyway  will  be  necessary 
or  advisable. 


Mr.  DRISCOLL.  There  is  another  idea,  simply  a  suggestion,  which  I 
would  offer  for  the  consideration  of  this  committee.  I  quite  agree  with 
the  gentleman  from  Kentucky  [Mr.  Sherley]  that  there  is  a  marked  ten- 

52 


8i8  AMERICAN  FEDERAL   GOVERNMENT 

dency  of  late  toward  paternalism,  or  paternal  government,  and  I  am 
not  a  strong  advocate  of  that  form  of  government.  I  agree  with  him 
that  the  central  Government  is  growing  stronger  day  by  day  relatively 
to  the  strength  of  the  several  State  governments.  Every  dollar  spent 
for  canals,  every  dollar  spent  for  irrigation,  every  dollar  spent  for  the 
improvement  of  rivers  and  harbors,  every  rural  delivery  carrier  started 
on  a  route  tends  to  enhance  the  power  of  the  National  Government 
relatively  to  the  power  of  the  governments  of  the  several  Common- 
wealths. But  this  argument  does  not  apply  especially  to  the  Republican 
party.  There  is  a  marked  tendency  on  the  part  of  gentlemen,  Members 
of  this  House,  Democrats  from  Southern  States,  to  surrender  the  doc- 
trine which  they  inherited  from  Calhoun  and  to  abandon  their  ideas 
of  States  rights  in  order  that  they  may  get  a  little  pork  in  the  barrel,  or 
that  they  may  get  some  benefit  from  the  central  Government  for  their 
several  States  or  districts. 

The  Democratic  party  in  the  State  of  New  York  only  a  few  years  ago 
introduced  a  plank  in  its  platform  for  ownership  of  the  anthracite  mines. 
On  the  yth  of  last  November  a  Member  of  this  House  on  the  Democratic 
side  ran  for  mayor  of  New  York  on  a  municipal-ownership  plank  and 
received  a  very  large  vote,  and  possibly  on  a  fair  canvass  and  honest 
count  he  was  elected.  I  say  possibly  because  I  venture  no  opinion  as 
to  the  merits  in  that  contest.  There  are  in  our  country  many  advocates 
of  Government  ownership  of  railways,  telegraph  and  telephone  lines, 
and,  in  short,  in  favor  of  governmental  or  municipal  ownership  of  all 
property  employed  in  the  production  and  distribution  of  the  necessa- 
ries of  life.  The  signs  of  the  times  all  indicate  that  there  is  a  marked 
tendency  toward  paternal  government,  and  I  do  not  know  of  any  business 
where  paternalism  would  be  as  wise  or  beneficial  to  the  people  as  in  life 
insurance.  This  is  offered  merely  as  a  suggestion.  It  may  come  up  as 
a  matter  of  serious  consideration  by  and  by.  With  the  central  govern- 
ment as  the  life  insurance  company,  as  the  underwriter  of  all  policies,  all 
the  expenses  of  the  vast  competition  which  is  now  being  waged  between 
the  several  companies  would  be  saved.  Those  expenses  are  very  heavy. 
The  commissions  and  other  expenses  in  securing  new  insurance  are 
very  large.  As  a  result  the  cost  of  insurance  in  the  great  life  companies 
is  nearly  as  much  again  as  it  ought  to  be.  It  is  nearly  as  much  again  as 
the  real  risk  would  justify.  If  the  expenses  of  competition  and  the  ex- 
travagance and  waste  in  those  large  companies  were  eliminated,  in- 
surance could  be  sold  for  about  one-half  what  it  costs  now,  because  not 
more  than  one-half  the  income  is  paid  out  as  actual  benefits  for  loss. 


Mr.  SHERLEY.  Mr.  Chairman,  I  do  not  know  that  I  desire  to  add 
much  to  what  I  said  earlier  in  the  day,  but  certain  remarks  made  by 
the  distinguished  gentleman  from  New  York  [Mr.  Cockran]  have  made 


CENTRALIZATION  819 

it  seem  to  me  proper  that  I  should  say  a  few  words.  The  House  always 
listens  with  great  delight  to  the  gentleman,  and  wisely  so,  and  yet  I 
never  hear  him  make  a  speech  without  being  reminded  of  a  story  that 
was  once  told  by  Huxley,  when  he  said  that  "Herbert  Spencer's  concep- 
tion of  a  tragedy  was  the  destruction  of  a  syllogism  by  a  fact."  And 
when  the  distinguished  gentleman  declined  to  yield  to  me  on  the  ground 
that  he  would  illustrate  the  tendency  and  purpose  of  his  speech  if  I 
would  only  be  patient,  I  could  not  help  but  think  that  he  was  considering 
the  possibility  of  a  destruction  of  one  of  his  syllogisms  by  a  fact.  And 
it  was  just  such  a  fact  that  I  think  necessary  to  bring  to  the  attention 
of  this  House. 

The  point  that  I  made  in  my  speech,  and  that  I  desire  to  emphasize 
because  of  the  very  eloquent  denial  of  it  made  by  the  gentleman  from 
New  York  [Mr.  Cockran]  is  this:  That  there  can  be  no  more  immoral 
practice  than  for  members  of  a  legislative  body  to  use  the  taxing  power, 
which  is  given  them  for  the  sole  purpose  of  raising  revenue,  for  some 
other  and  ulterior  purpose.  I  not  only  maintain  that,  but,  despite  the 
fact  that  my  reading  may  not  be  as  extensive  or  along  the  same  line  as 
that  of  the  gentleman,  I  maintain  that  where  the  taxing  power  has  been 
used  in  support  of  the  liberties  of  the  English  people  it  has  been  used 
along  the  line  of  a  denial  of  appropriations  rather  than  the  line  of  divert- 
ing it  from  its  real  purpose  into  other  purposes  not  germane  to  revenue 
raising. 

But  if  that  be  not  historically  true  the  gentleman  overlooks  the  dis- 
tinction —  that  in  England  there  is  not  the  limitation  of  power  that  there 
is  in  regard  to  our  National  Government.  Here  the  taxing  power  is 
expressly  given  for  one  purpose  and  one  purpose  only,  and  the  Supreme 
Court  has  had  occasion  repeatedly  to  declare  that  police  power  did  not 
exist  in  the  National  Government. 

The  point  I  wanted  to  make,  and  that  I  desire  to  emphasize,  is  that 
if  the  States  do  not  use  their  power,  then  by  not  using  it  they  will  cease 
to  have  the  capacity  to  use  it,  and  as  a  result  of  that  we  will  see  a  con- 
centration and  centralization  such  as  the  world  never  saw  before.  And 
in  that  connection  it  is  a  curious  fact  that  the  loudest  advocates  to-day 
for  national  control  are  the  same  distinguished  gentlemen  whom  the  gen- 
tleman from  New  York  described  in  such  glowing  and  accurate  terms. 
They  are  the  presidents  of  the  life  insurance  companies  themselves. 


My  position  about  that  is  my  position  about  the  great  subject  of  gov- 
ernment in  general.  Because  I  have  seen  the  people  fail,  because  I  have 
seen  abuse  prosper,  because  I  have  seen  the  wicked  and  the  powerful 
flourish  as  the  green  bay  tree,  it  has  not  made  me  believe  less  in  the 
people,  but  only  more.  The  day  may  be  postponed,  but  the  day  is  not 
going  to  be  brought  nearer  by  saying  to  the  people,  "You  must  not  use 


820  AMERICAN  FEDERAL   GOVERNMENT 

your  power."  It  is  not  going  to  be  brought  nearer  by  concentrating  the 
power  a  long  way  from  home.  It  is  going  to  be  brought  nearer  and 
made  more  certain  by  making  the  people  realize  that  in  their  own 
hands,  on  their  own  heads,  the  sin  and  the  saving  lies.  They  must  go 
to  work  themselves,  and  they  must  do  it  through  their  agencies  at 
home.  [Applause.] 

Mr.  COCKRAN.  I  would  like  to  ask  the  gentleman  from  Kentucky 
[Mr.  Sherley]  if  the  power  of  the  Federal  Government  is  any  less  the 
power  of  the  people  than  the  power  of  the  town,  the  power  of  the  county, 
or  the  power  qf  the  State? 

Mr.  SHERLEY.  I  shall  answer  the  gentleman  in  this  way,  and  when  I 
have  answered  I  shall  not  further  detain  the  House  by  this  dissertation 
between  the  two  of  us,  because  I  remember  the  gentleman's  suggestion 
that  I  should  not  have  the  egotism  to  think  that  I  constitute  the  House 
or  that  my  private  views  and  an  explanation  of  them  was  the  only  matter 
of  discussion.  I  will  answer  the  gentleman  in  this  way,  that  my  con- 
ception of  government,  and  the  Democratic  conception  of  government, 
has  been,  first,  that  that  government  which  governs  least  governs 
best;  second,  that  that  government  which  stays  closest  home  to  the 
people  is  most  democratic  and  less  liable  to  abuse,  less  liable  to  get 
beyond  control.  It  is  easier  for  the  people  of  the  State  of  New  York  to 
know  something  of  their  State  government  than  it  is  for  them  to  know 
something  of  their  National  Government.  It  is  easier  for  the  people 
of  Kentucky  to  know  more  about  their  State  government  than  they  do 
about  the  National  Government.  The  fact  that  they  do  not  know  it  is 
not  a  contradiction  of  my  statement.  They  could  know  it.  This  I 
know,  that  when  this  country  started  on  its  career  the  State  legislatures 
contained  the  ablest  of  men ;  that  the  time  was  when  men  resigned  from 
the  National  Congress  to  take  a  seat  in  their  State  legislature.  That 
may  have  been  a  false  position,  but  it  is  not  half  so  false  a  position  as 
that  which  to-day  makes  your  State  legislature  a  disregardable  body, 
and  to  which  are  sent  men  who  are  not  capable  of  broad  statecraft. 
And  I  say  to  you  if  there  is  any  hope  for  the  redemption  of  America, 
though  the  picture  be  as  black  as  the  gentleman  has  painted  it,  the 
hope  lies  in  going  back  to  the  people  and  letting  them  learn  the  old 
lesson  that  they  can  not  shirk  responsibility,  can  not  shift  it  off  to 
another  forum  and  expect  relief;  they  must  get  it  at  home,  and  that 
thought  was  the  cause  of  and  excuse  for  my  speech  this  morning. 
[Applause.] 

Mr.  WILLIAMS.  Mr.  Chairman,  it  is  great  good  fortune  to  have 
listened  to  two  such  addresses  as  we  have  heard  to-day,  one  from  the 
gentleman  from  Kentucky  [Mr.  Sherley],  containing  a  clear  analysis 
and  sound  and  philosophical  exposition  of  the  status  of  this  question 
in  its  relation  to  the  Federal  and  the  State  governments  —  a  statement 
of  a  lawyer,  founded  upon  law,  cool  and  clear;  the  other,  an  eloquent 


CENTRALIZATION  821 

denunciation  of  wrong  and  vice  and  criminality  in  high  place  and  an 
exposition  of  the  underlying  ethics,  excelled  by  nothing  that  I  have 
ever  heard  upon  this  floor.  The  gentlemen  from  New  York  and  from 
Kentucky  agree  in  their  conclusion,  to  wit,  that  the  Federal  Govern- 
ment has  no  jurisdiction  over  the  subject-matter  of  insurance.  Now, 
Mr.  Chairman,  these  speeches  have  been  a  public  benefit,  but  they  have 
been  to  some  extent  a  personal  injury,  because  they  have  cut  out  from 
under  me  many  of  the  things  that  I  desired  to  say,  because  these  gentle- 
men have  said  them  better.  I  shall,  however,  begin  by  saying  that  I 
agree  with  the  gentleman  from  Kentucky  [Mr.  Sherley]  that  what  the 
Irish  call  "home  rule  "  is,  as  a  rule,  the  most  honest  rule.  [Applause.] 
It  is  honest  for  the  reason  that  the  men  who  are  the  " rulers,"  so  called, 
the  men  in  whom  power  is  lodged,  are  neighbors  of  the  men  who  lodge 
it,  personal  acquaintances  of  theirs  —  their  characters  intimately  known 

—  and  because  they  exercise  the  power  under  the  eyes  of  their  neighbors 
and  friends,  who  can  at  intervals  withdraw  it.    I  believe  in  it  in  an  as- 
cending  scale,    leaving  power  —  in  as  far  as  can  with  safety  be  left 

—  first  to  the  individual,  second  to  the  family,  third  to  the  town,  fourth 
to  the  county,  fifth  to  the  State,  and  sixth,  and  then  only  when  the  Con- 
stitution expressly  or  by  necessary  or  obviously  proper  intendment  dele- 
gates it,  to  the  Federal  Government.    Now,  the  gentleman  from  New 
York  [Mr.  Cockran]  has  correctly  said  that  all  the  liberties  of  the  English- 
speaking  people  were  founded  upon  the  assertion  by  the  legislative  body 
of  the  taxing  power.    That  is  true;   and  while  he  can  argue  by  analogy 
to  some  extent  between  the  British  House  of  Commons  and  the  Ameri- 
can House  of  Representatives,  he  must  remember  the  distinction  between 
the  two.    While  it  is  absolutely  true  that  the  House  of  Commons  exer- 
cised its  taxing  power  for  the  strengthening  and  enforcement  and  execu- 
tion of  the  power  which  it  had  —  a  legislative  power  —  it  is  also  true 
that  the  British  House  of  Commons  had  an  unlimited  and  original  and 
inherent  legislative  power  and  therefore  the  exercise  of  the  taxing  power 
in  order  to  execute  that  legislative  power  was  totally  a  different  and  a 
larger  thing  than  ought  to  be  the  exercise  of  the  taxing  power  by  the 
House  of  Representatives,  which  has  only  a  limited  power,  a  delegated 
power. 

Mr.  Chairman,  it  can  never  happen  that  the  power  to  tax  can  give  jur- 
isdiction over  a  subject-matter  of  taxation  when  dealing  with  the  subject- 
matter  is  neither  delegated  to  the  General  Government  nor  prohibited  to 
the  States.  You  must  first  have  the  jurisdiction  over  the  subject-matter. 
Then  there  follows,  as  the  auxiliary  or  enforcing  clause,  the  power  to 
tax,  not  only  to  raise  revenue,  but,  if  actual  need  be,  to  enforce  the 
power.  If  you  have  the  power  over  the  subject-matter,  you  may  tax, 
not  only  to  bring  a  revenue,  but  to  execute  the  power,  if  that  be  an 
obviously  proper  or  necessary  means  to  the  end  of  exercising  the  power. 
For  example,  if  the  Federal  Government  has  the  power  to  forbid  cer- 


822  AMERICAN   FEDERAL   GOVERNMENT 

tain  things,  it  may  forbid  them  by  taxation,  let  us  say.  I  do  not  think 
the  distinguished  gentleman  from  New  York  [Mr.  Cockran]  intended  to 
leave  the  impression  which  he  left  upon  the  mind  of  the  gentleman  from 
Kentucky  [Mr.  Sherley],  to  wit,  that  the  Federal  power  had  any  specific, 
substantive  power  of  taxation  independently  of  all  other  powers  granted 
or  denied  in  the  Constitution  of  the  United  States.  The  power  to  deal 
with  the  subject-matter  must  be  there  first.  You  ought  never  to  form 
a  nexus  between  a  subject-matter  over  which  you  have  no  constitutional 
power  and  the  Constitution  itself  by  the  assertion  of  it  through  the  tax- 
ing power.  Taxes  are  always  means  to  an  end,  not  in  themselves  an 
end.  The  end  itself  must  be  constitutional. 

Now,  I  am  perfectly  aware  of  the  fact  there  is  a  little  weight  in  the 
Supreme  Court  decisions  that  would  seem  to  squint  the  other  way  if 
unstudied,  but  it  amounts  to  nothing  if  studied.  Here  is  the  Supreme 
Court  of  the  United  States  stating  in  effect  that  it  would  not  undertake 
to  investigate  the  motives  of  Congress  when  exercising  the  taxing  power. 
In  other  words,  it  is  a  compliment  to  Congress,  to  the  legislative  body 
from  a  coordinate  branch,  stating  that  it  would  not  attribute  to  it  the 
bad  motive  of  obtaining  jurisdiction  simply  .by  the  assertion  of  the 
taxing  power.  It  takes  for  granted  integrity  of  motive,  intellectual  in- 
tegrity. Now,  Mr.  Chairman,  there  are  two  forms  of  centralization  by 
the  Federal  Government,  one  of  which  I  am  afraid  we  can  not  help  and 
the  other  one  we  can  help,  I  think.  That  centralization  which  proceeds 
from  the  exercise  of  clearly  delegated  power  is  a  form  of  centralization 
which,  I  fear,  must  go  on.  In  so  far  as  Congress  has  not  already  exer- 
cised to  the  full  its  clearly  delegated  power  it  will  in  the  course  of  his- 
tory exercise  it.  Nor  is  there  anything  undemocratic  in  maintaining  in 
full  integrity  the  expressly  delegated  powers  of  the  General  Government. 
Jefferson  said  as  much. 

The  other  form  of  centralization,  which  is  always  vicious  and  an 
usurpation,  is  to  assert  Federal  jurisdiction  by  a  pretext,  whether  it  be 
by  the  mere  pretext  of  interstate  commerce  where  no  interstate  com- 
merce exists  or  whether  it  be  by  the  pretext  of  the  taxing  power  asserted 
as  a  connecting  link  with  the  trust  that  the  court  will  not  examine  our 
motive;  it  is  all  the  same;  it  is  vicious  and  an  usurpation.  Now,  let  us 
come  to  this  particular  question,  Mr.  Chairman.  The  Supreme  Court 
has  spoken  in  this  case  and  it  has  declared  that  insurance  is  not  com- 
merce of  any  sort  and  especially  is  it  not  interstate  commerce.  That 
disposes  of  the  question  as  to  whether  there  is  any  jurisdiction  under 
the  rule  in  the  Committee  on  Interstate  Commerce.  To  what  committee 
it  should  go  I  myself  am  a  little  in  doubt.  My  opinion  was  that  it  ought 
to  have  gone  to  the  Committee  on  the  Judiciary  with  instructions  to 
investigate  the  jurisdictional  power  of  the  Federal  Government  and  to 
report  to  this  House,  but  the  Chairman  of  the  Committee  on  the  Judi- 
ciary not  having  made  a  fight  for  the  jurisdiction  and  the  committee  mak- 


CENTRALIZATION  823 

ing  none,  we  are  faced  with  the  alternative  of  sending  it  to  the  Interstate 
and  Foreign  Commerce  or  the  Committee  on  Ways  and  Means. 
******** 

Now,  Mr.  Chairman,  that  the  Members  of  the  House  may  catch  the 
reason  for  the  distinction  I  have  made,  I  will  say  that  the  Committee  on 
the  Judiciary  has  jurisdiction  for  the  purpose  of  reporting  to  the  House 
whether  or  not  the  Federal  Government  has  jurisdiction.  But,  if  they 
were  to  report  to  the  House  that  the  Federal  Government  did  have 
jurisdiction,  then  the  Judiciary  Committee  would  not  be  the  proper 
committee  to  deal  with  the  subject-matter,  because  that  would  depend 
upon  what  ground  they  placed  the  constitutional  jurisdiction  of  the 
Federal  Government.  If  they  placed  it,  for  example,  on  the  ground 
that  it  was  interstate  commerce,  then  the  matter  would  go  to  that  com- 
mittee; if  they  would  place  it  upon  the  ground  that  the  exercise  of  the 
taxing  power  made  a  jurisdiction  —  an  inconceivable  thing  for  a  lawyer 
to  do  —  then  it  would  go  to  the  Committee  on  Ways  and  Means ;  if 
they  said  the  Federal  Government  had  no  jurisdiction  at  all,  then  that 
would  settle  the  matter.  That  is  the  reason  why  I  would  not  vote  for 
a  general  committal  to  the  Judiciary  Committee,  while  I  would  vote 
for  a  committal  to  the  Judiciary  Committee  with  instructions  to  report 
upon  our  jurisdiction.  Now,  let  me  proceed. 

Mr.  STEENERSON.  Does  not  the  message  itself  submit  the  question 
to  the  House  simply?  I  find  on  page  16  the  following: 

I  repeat  my  previous  recommendation  that  the  Congress  should  also  consider 
whether  the  Federal  Government  has  any  power  or  owes  any  duty  with  respect 
to  domestic  transactions  in  insurance  of  an  interstate  character. 

Is  not  the  question  submitted  by  the  message,  whether  or  not  we 
have  the  power,  and  would  a  simple  reference  be  a  reference  of  that 
question  ? 

Mr.  WILLIAMS.  It  would  not.  Unless  it  is  a  committal  requiring 
investigation  and  report  on  the  question  of  jurisdiction,  then  it  is  a  com- 
mittal for  legislation  as  well.  The  President  is  no  lawyer,  I  will  say, 
in  answer  further  to  the  gentleman.  He  admits  that  he  is  not.  That 
is  one  of  the  things  which  he  is  not,  which  is  accompanied  by  an  admis- 
sion on  his  part  to  that  effect.  There  are  not  many  things  of  that  sort. 
[Laughter.] 

Now,  Mr.  Chairman,  to  go  further  in  connection  with  this  taxing 
power  nexus  between  the  subject-matter  and  the  Constitution  of  the 
United  States,  just  suppose  you  could  have  jurisdiction  over  any  possible 
subject-matter  simply  because  you  had  the  power  of  taxation,  where 
would  it  stop?  Why,  it  would  be  a  blanket  clause  that  would  cover 
everything.  Congress  might  to-morrow  pass  an  act  ordaining  a  direct 
tax  upon  lands  and  apportioning  it  between  the  States,  and  then,  inci- 


824  AMERICAN   FEDERAL   GOVERNMENT 

dental  to  the  power  of  taxation  (if  any  power  is  to  be  exercised  as  inci- 
dental to  taxation,  when  really  taxation  is  itself  only  incidental  to  other 
and  substantive  powers,  or  itself  substantive  only  to  raise  a  revenue), 
the  Congress  could  go  on  and  in  the  same  act  enact  the  Henry  George 
system  of  single  tax.  It  could  do  anything,  I  do  not  care  what.  It 
could  to-morrow  tax  barrels,  and  then  it  could  legislate  that  the  barrel 
should  hold  only  so  much,  or  should  not  hold  less  than  so  much,  or 
should  have  so  many  hoops,  or  should  contain  nothing  but  water.  The 
minute  that  gentlemen,  on  this  side  of  the  Chamber  especially,  ever 
surrender  the  idea  that  the  taxing  power  can  make  a  nexus  between  the 
subject-matter  and  the  Constitution  where  no  other  nexus  exists,  then 
we  have  surrendered  to  federalism,  and  we  might  as  well  go  out  of 
business,  because  we  as  a  party  would  have  no  right  whatsoever  to 
exist.  [Applause  on  the  Democratic  side.] 

Now,  Mr.  Chairman,  I  want  to  talk  a  little  about  the  subject-matter, 
although  my  friends  from  New  York  and  Kentucky  have  left  me  no 
opportunity  to  grow  eloquent  upon  the  crimes  and  abuses  of  the  present 
conditions,  nor  the  advantages  of  preserving  inviolate  the  reserved 
rights  of  the  States  as  the  sheet  anchor  of  individuality  and  local 
self-government . 

Mr.  Hepburn  rose. 

The  CHAIRMAN  (Mr.  COCKS  in  the  chair).  Does  the  gentleman  from 
Mississippi  yield  to  the  gentleman  from  Iowa  [Mr.  Hepburn]? 

Mr.  WILLIAMS.     Certainly. 

Mr.  HEPBURN.     Will  the  gentleman  permit  me  an  interruption? 

Mr.  WILLIAMS.     Yes. 

Mr.  HEPBURN.  The  gentleman  from  Mississippi  has  already  spoken 
with  relation  to  the  taxing  power  and  to  the  power  that  might  be  exer- 
cised under  the  commerce  clause  of  the  Constitution.  The  gentleman 
from  New  York  [Mr.  Cockran]  has  suggested  that  there  is  another  power, 
lodged  in  the  fourth  section  of  the  fourth  article  of  the  Constitution,  that 
each  State  shall  be  guaranteed  a  republican  form  of  government.  Will 
the  gentleman,  before  he  leaves  this  branch  of  the  subject,  give  us  his 
views  as  to  the  power  that  the  Government  of  the  United  States  may 
have  to  control  an  insurance  company  through  its  undoubted  power  to 
secure  to  a  State  a  republican  form  of  government  ? 

Mr.  WILLIAMS.  I  will  reply  by  saying  that  a  republican  form  of  gov- 
ernment does  not  mean  an  honest  government  or  incorrupt  government, 
as  all  of  us  have  ascertained  in  these  latter  days,  and  that  the  constitu- 
tional guaranty  of  a  republican  form  of  government  is  not  a  guaranty  of 
honest  administration  of  government.  It  is  a  high  tribute  to  my  friend 
from  New  York,  his  morals  and  his  high  ideals  of  republican  govern- 
ment, that  he  should  have  led  to  an  unconscious  confusion  of  the  two  in 
that  matter.  There  are  a  great  many  sorts  of  republican  governments. 
Historically  we  find  that  there  have  been  democratic  republican  govern- 


CENTRALIZATION  825 

ments  like  that  of  Athens,  aristocratic  republican  governments  like  that 
of  Sparta,  plutocratic  republican  governments  like  that  of  Venice,  and 
a  mixed-up  republican  government  like  that  we  have  —  a  republic  of 
lesser  republics,  with  two  different  sets  of  republican  governments  work- 
ing along  different  lines  with  the  power  of  the  people  over  both  checked 
—  materially  blocked  in  the  Federal  Government  —  by  the  Senate,  and 
checked  by  the  absolute  veto  of  the  Executive,  neither  of  which  is  con- 
sistent with,  a  pure  democracy,  but  both  quite  consistent  with  a  repub- 
lican form  of  government.  Undoubtedly  what  our  forefathers  meant  by 
the  phrase  was  a  government  of  law  and  not  a  government  of  one-man 
power  —  a  monarchy,  or  any  arbitrary  government  —  a  government  in 
which  the  people,  or  at  least  those  of  them  competent  for  governing, 
should  be  the  source  of  power  and  law,  the  form  of  its  expression.  They 
had  just  come  out  from  under  the  Monarchy  of  England. 

Mr.  COCKRAN.  If  the  gentleman  will  permit  me,  I  did  not  discuss 
the  corruption  of  the  Government  in  regard  to  that.  The  point  I  made 
was  about  a  trust  where  the  parties  to  the  trust  could  not  scrutinize  the 
methods  of  administration,  and  a  fund  which  must  grow,  without  any 
possibility  of  distribution,  were  both  elements  in  conflict  with  the  ju- 
dicial system  established  by  every  State  and  inconsistent  with  the  secu- 
rity of  republican  government,  which  had  nothing  to  do  with  its  growth. 

Mr.  WILLIAMS.  Let  me  state  what  I  understand  by  corruption, 
because  your  supposition  involves  necessarily  a  presumption  of  corrup- 
tion controlling  or  annulling  government  of  the  people.  It  presumes 
the  case  of  one  man,  or  a  few  men,  who  had  immense  amounts  of  money, 
enough  to  buy  everything,  that  the  people  themselves  had  lost  their  vote 
and  their  voting  power  because  that  one  man  or  that  one  corporation 
controlled  everything  and  voted  everybody  by  influencing  or  buying  the 
voters,  or  else  by  influencing  or  buying  legislators,  judges,  or  juries. 
That  would  undoubtedly  be  corruption,  but  it  would  be  corruption  under 
spirit  "  a  republican  form  of  government."  The  republican  governmental 
might  have  departed,  true  enough.  If  there  were  any  law  that  gave 
that  man  or  corporation  the  sole  power,  that  would  not  be  a  republican 
form  of  government ;  that  would  simply  be  a  corrupt  monarchical  form 
of  government.  If  you  let  the  State  of  New  York  alone ;  if  you  leave  it 
to  itself ;  if  you  carry  the  government  right  to  the  door  of  her  people  and 
let  them  alone,  they  will  root  up  and  eradicate  this  evil.  They  won't 
have  it  long.  Where  you  carry  responsibility  you  give  experience,  and 
where  experience  is  gained  you  find  ability,  and  with  both  you  have 
watchfulness,  and  with  watchfulness  virtue,  courage,  and  honesty.  That 
has  always  been  the  case.  [Loud  applause.] 


XVI 
THE    NATIONAL    CONVENTION 

THE  REPUBLICAN  CONVENTION  OF   1880 ' 

[The  two  subsequent  articles  are  among  the  most  interesting  accounts  ever 
given  of  National  Conventions.  Senator  Hoar,  from  whose  autobiography  the 
first  account  is  taken,  was  the  permanent  chairman  of  the  Republican  Con- 
vention of  1880,  which  he  describes.  Mr.  A.  P.  Dennis  was  a  delegate  to  the 
Democratic  Convention  of  St.  Louis  in  1904.] 

THIS  convention  was  menaced  by  a  very  serious  peril.  A  plan  was 
devised  which,  if  it  had  been  successful,  would,  in  my  judgment,  have 
caused  a  rupture  in  the  convention  and  the  defeat  of  the  Republican 
Party  in  the  election.  The  Chairman  of  the  Republican  National  Com- 
mittee was  Don  Cameron  of  Pennsylvania,  then  and  for  some  years 
afterward  a  Senator  of  the  United  States  from  that  State.  He  was  an 
ardent  supporter  of  President  Grant  and  had  been  Secretary  of  War  in 
his  Cabinet,  as  his  father  had  been  in  the  Cabinet  of  President  Lincoln. 
Like  his  father  before  him,  he  had  ruled  the  Republican  Party  of  Penn- 
sylvania with  a  strong  hand.  He  was  not  given  to  much  speaking.  He 
was  an  admirable  executive  officer,  self-reliant,  powerful,  courageous, 
and  enterprising,  with  little  respect  for  the  discontent  of  subordinates. 
He  was  supported  by  a  majority  of  the  delegates  from  Pennsylvania, 
although  Elaine,  who  was  a  native  of  that  State,  had  a  large  following 
there.  The  New  York  delegation  was  headed  by  Roscoe  Conkling, 
who  had  great  influence  over  Grant  when  he  was  President,  and  ex- 
pected to  retain  that  influence  if  he  became  President  again.  The 
Maryland  delegates  were  headed  by  J.  A.  J.  Croswell,  who  had  been 
Postmaster- General  more  than  five  years  in  Grant's  two  Administra- 
tions. On  the  Massachusetts  delegation,  as  I  have  said,  was  Governor 
Boutwell,  Grant's  Secretary  of  the  Treasury  during  nearly  the  whole 
of  his  first  term,  and  on  that  from  Illinois  John  A.  Logan.  These  men 
had  a  large  following  over  the  whole  country.  There  were  three  hun- 
dred and  eight  persons  in  the  convention  who  could  be  counted  on  to 

1  From  the  Autobiography  of  Senator  Hoar  (Vol.  I,  388),  reproduced  by  permission 
of  the  Publishers,  Chas.  Scribner's  Sons,  New  York.  Copyright. 

826 


THE  NATIONAL   CONVENTION  827 

•support  Grant  from  beginning  to  end,  and  about  a  dozen  more  were 
exceedingly  disposed  to  his  candidacy.  The  State  Conventions  of  the 
three  largest  and  most  powerful  States,  New  York,  Pennsylvania,  and 
Illinois,  and  possibly  one  or  two  others,  that  I  do  not  now  remember, 
had  instructed  their  delegates  to  vote  as  a  unit  for  the  candidate  who 
should  be  agreed  upon  by  the  majority.  Grant  had  a  majority  in  each 
of  these  States.  But  there  was  a  minority  of  1 8  in  Illinois,  26  in  Penn- 
sylvania, and  19  in  New  York,  who  were  for  other  candidates  than  Grant. 
If  their  votes  had  been  counted  for  him  it  would  have  given  Grant  on 
the  first  ballots  367  votes,  13  less  than  the  number  necessary  for  a  choice. 
As  his  votes  went  up  on'one  of  the  ballots  to  313,  it  is  pretty  certain  that 
counting  these  63  votes  for  Grant  would  have  insured  his  nomination. 
But  there  were  several  contests  involving  the  title  of  their  seats  of  16 
delegates  from  the  State  of  Louisiana,  18  from  Illinois,  and  three  others. 
In  regard  to  these  cases  the  delegates  voted  in  accordance  with  their 
preference  for  candidates.  This  was  beside  several  other  contests  where 
the  vote  was  not  determined  by  that  consideration.  Now  if  the  vote  of 
Illinois,  Pennsylvania,  and  New  York  had  each  been  cast  as  a  unit,  in 
accordance  with  the  preference  of  the  majority  of  the  delegation  in 
each  case,  these  37  votes  would  have  been  added  to  Grant's  column  and 
subtracted  from  the  forces  of  his  various  antagonists ;  and  the  63  votes 
of  the  minority  of  the  delegations  in  these  three  States  would  also  have 
been  added  to  the  Grant  column,  which  would  have  given  him  a  total 
vote  of  more  than  400,  enough  to  secure  his  nomination.  So  the  result 
of  the  convention  was  to  be  determined  by  the  adoption  or  rejection  of 
what  was  called  the  unit  rule. 

Don  Cameron,  the  Chairman  of  the  National  Committee,  left  the 
Senate  for  Chicago  about  ten  days,  I  think,  before  the  day  fixed  for  the 
meeting  of  the  convention.  It  was  whispered  about  before  his  departure 
that  a  scheme  had  been  resolved  upon  by  him  and  the  other  Grant 
leaders,  which  would  compel  the  adoption  of  the  unit  rule,  whatever 
might  be  the  desire  of  the  convention  itself.  It  was  his  duty,  accord- 
ing to  established  custom,  to  call  the  convention  to  order  and  to  receive 
nominations  for  temporary  presiding  officer.  He  was  pledged,  upon 
those  nominations,  as  it  was  understood,  to  hold  that  the  unit  rule  must 
be  applied.  In  that  way  the  sitting  members  from  the  disputed  States 
and  districts  would  be  permitted  to  vote,  and  the  votes  of  the  three 
States  would  be  cast  without  dissent  for  the  Grant  candidates.  When  the 
temporary  President  took  his  place  he  would  rule  in  the  same  way  on 
the  question  of  the  choice  of  a  permanent  President,  and  the  perma- 
nent President  would  rule  in  the  same  way  on  the  conflicting  votes,  for 
the  appointment  of  committees,  for  determining  the  seats  of  dele- 
gates, and  finally  the  nomination  of  the  candidates  for  President  and 
Vice-President.  If  the  minority  claimed  the  right  to  vote  and  took  an 
appeal  from  his  decision,  he  was  to  hold  that  on  the  vote  on  that  appeal 


828  AMERICAN   FEDERAL   GOVERNMENT 

the  same  unit  rule  was  to  apply.  If  a  second  point  of  order  were  raised,- 
he  would  hold,  of  course,  that  a  second  point  of  order  could  not  be  raised 
while  the  first  was  pending.  So  the  way  seemed  clear  to  exclude  the 
contesting  delegates,  to  cast  the  votes  of  the  three  great  States  solid  for 
Grant,  and  compel  his  nomination. 

But  the  majority  of  the  National  Committee,  of  which  Cameron  was 
Chairman,  was  opposed  to  Grant.  They  met,  I  think,  the  day  before 
the  meeting  of  the  convention  to  make  the  preliminary  arrangements. 
Mr.  Cameron,  the  Chairman,  was  asked  whether  it  was  his  purpose  to 
carry  out  the  scheme  I  have  indicated.  He  refused  to  answer.  A  mo- 
tion was  then  made  that  the  Chairman,  after  calling  the  convention  to 
order,  be  instructed  to  receive  the  vote  of  the  individual  delegates  with- 
out regard  to  the  instruction  of  the  majority  of  their  delegation.  Cameron 
refused  to  receive  motions  on  that  question,  saying  that  it  was  a  matter 
beyond  the  jurisdiction  of  the  committee.  A  large  part  of  the  entire 
day  was  spent  in  various  attempts  to  induce  Cameron  either  to  give  a 
pledge  or  permit  a  resolution  to  be  entertained  by  the  committee,  in- 
structing him  as  to  his  action.  He  was  supported  by  Mr.  Gorham,  of 
California,  who  I  believe  was  not  a  member  of  the  committee,  but  was 
present  either  as  Secretary  or  as  Amicus  Curae.  He  was  an  experienced 
parliamentarian,  and  for  a  long  time  had  been  Secretary  of  the  Senate 
of  the  United  States.  The  discussion  for  the  majority  was  conducted 
largely  by  Mr.  Chandler,  of  New  Hampshire,  afterward  Secretary  of 
the  Navy,  and  later  Senator.  After  spending  a  large  part  of  the  day  in 
that  discussion,  some  time  in  the  afternoon  an  intimation  was  made, 
informally,  and  in  a  rather  veiled  fashion,  that,  unless  they  had  more 
satisfactory  pledges  from  Mr.  Cameron,  he  would  be  removed  from 
the  office  of  Chairman,  and  a  person  who  would  carry  out  the  wishes 
of  the  committee  be  substituted.  The  committee  then  adjourned  until 
the  next  morning.  Meantime  the  Grant  managers  applied  to  Colonel 
Strong,  of  Illinois,  who  had  been  already  appointed  Sergeant-at-Arms 
by  the  committee,  and  who  was  a  supporter  of  Grant,  to  ascertain 
whether,  if  the  committee  were  to  remove  Cameron  and  appoint  an- 
other chairman,  he  would  recognize  him  as  a  person  entitled  to  call  the 
convention  to  order  and  preside  until  a  temporary  Chairman  was  chosen, 
and  would  execute  his  lawful  orders,  or  whether  he  would  treat  them 
as  without  effect  and  would  execute  the  orders  of  Cameron.  He  desired 
time  for  consideration,  which  was  conceded.  He  consulted  Senator 
Philetus  Sawyer  of  Wisconsin,  who  was  himself  in  favor  of  General 
Grant,  but  who  desired  above  all  things  the  success  of  the  Republican 
Party,  or  was  not  ready  for  any  unlawful  or  revolutionary  action.  Mr. 
Sawyer  was  a  business  man  of  plain  manners,  and  though  of  large  ex- 
perience in  public  life,  was  not  much  versed  in  parliamentary  law.  He 
called  into  consultation  ex-Senator  Timothy  O.  Howe,  of  Wisconsin, 
formerly  Senator  from  that  State,  and  afterward  Postmaster- General 


THE  NATIONAL   CONVENTION  829 

under  Arthur.  He  was  a  very  able  and  clearheaded  lawyer,  and  had  a 
high  reputation  for  integrity.  He  advised  Mr.  Strong  that  the  com- 
mittee might  lawfully  depose  their  Chairman  and  appoint  another,  and 
that  it  would  be  his  duty,  as  Sergeant-at-Arms,  to  recognize  the  new 
Chairman  and  obey  his  lawful  orders.  Strong  was  under  great  obliga- 
tions to  Sawyer,  who  had  aided  him  very  largely  in  business  matters, 
and  had  a  high  respect  for  his  judgment.  He  gave  his  response  to  the 
Grant  leaders  in  accordance  with  the  advice  of  Mr.  Howe,  in  which 
Senator  Sawyer  concurred.  They  had  intended  to  make  General  Cres- 
well  the  President  of  the  convention.  But  finding  it  impossible  to  carry 
their  plans  into  effect,  in  order  to  prevent  the  severe  measure  of  depos- 
ing the  Chairman  of  the  committee,  they  consented  that  the  assurances 
demanded  should  be  given.  There  was  then  a  negotiation  between  the 
leaders  on  the  side  of  Grant  and  Elaine  for  an  agreement  upon  a  pre- 
siding officer.  It  was  well  known  that  I  was  not  in  favor  of  the  nomina- 
tion of  either.  Senator  Hamlin,  formerly  Vice-President  and  then  a 
Senator,  proposed  my  name  to  Mr.  Conkling  as  a  person  likely  to  be 
impartial  between  the  two  principal  candidates.  Mr.  Conkling  replied 
that  such  a  suggestion  was  an  insult.  Hamlin  said:  "I  guess  I  can 
stand  the  insult."  But  on  consultation  of  the  Grant  men  and  the  Blaine 
men  it  was  agreed  that  I  should  be  selected,  which  was  done  accord- 
ingly. I  was  nominated  orally  from  the  floor  when  Mr.  Cameron  called 
the  convention  to  order,  and  chosen  temporary  President  by  acclama- 
tion and  unanimously.  As  proceedings  went  on  it  was  thought  best 
not  to  have  any  division  or  question  as  to  a  permanent  Chairman  and 
it  was  at  the  proper  time  ordered,  also  without  objection,  that  I  should 
act  as  permanent  President. 

But  the  Grant  leaders  were  still  confident.  They  felt  sure  that  none 
of  their  original  votes,  numbering  three  hundred  and  more,  would  de- 
sert them,  and  that  it  would  be  impossible  for  the  rest  of  the  convention, 
divided  among  so  many  candidates,  to  agree,  and  that  they  would  in 
the  end  get  a  majority. 

I  was  myself  exceedingly  anxious  on  this  subject.  I  also  felt  that  if 
the  followers  of  Grant  could  get  any  pretext  for  getting  an  advantage 
by  any  claim,  however  doubtful,  that  they  would  avail  themselves  of  it, 
even  at  the  risk  of  breaking  up  the  convention  in  disorder,  rather  than 
be  baffled  in  their  object.  So  the  time  to  me  was  one  of  great  and  dis- 
tressing responsibility.  The  forces  of  Grant  were  led  on  the  floor  of  the 
convention  by  Roscoe  Conkling,  who  nominated  him  in  a  speech  of 
great  power  and  eloquence.  The  forces  of  Blaine  were  led,  as  they 
had  been  in  1876,  very  skillfully  by  Senators  Hale  and  Frye.  Garfield 
was  the  leader  of  the  supporters  of  Mr.  Sherman.  One  of  the  greatest 
oratoric  triumphs  I  ever  witnessed  was  obtained  by  Garfield.  There 
had  been  a  storm  of  applause,  lasting,  I  think,  twenty-five  minutes,  at 
the  close  of  Conkling's  nominating  speech.  It  was  said  there  were 


830  AMERICAN   FEDERAL   GOVERNMENT 

fifteen  thousand  persons  in  the  galleries,  which  came  down  very  near 
the  level  of  the  floor.  The  scene  was  of  indescribable  sublimity.  The 
fate  of  the  country,  certainly  the  fate  of  a  great  political  party,  was  at 
stake,  and,  more  than  that,  the  selection  of  the  ruler  of  a  nation  of  fifty 
millions  of  people  —  a  question  which  in  other  countries  could  not 
have  been  determined,  under  like  circumstances,  without  bloodshed 
or  civil  war.  I  do  not  think  I  shall  be  charged  with  exaggeration  when 
I  speak  of  it  in  this  way.  I  can  only  compare  it  in  its  grandeur  and 
impressiveness  to  the  mighty  torrent  of  Niagara.  Perhaps  I  can  not 
give  a  satisfactory  reason  for  so  distinguishing  it  from  other  like  as- 
semblies that  have  gathered  in  this  country.  But  I  have  since  seen  a 
great  number  of  persons  from  all  parts  of  the  country  who  were  present 
as  members  or  inspectors,  and  they  all  speak  of  it  in  the  same  way.  A 
vast  portion  of  the  persons  present  in  the  hall  sympathized  deeply  with 
the  supporters  of  Grant.  Conkling's  speech,  as  he  stood  almost  in  the 
center  of  that  great  assembly  on  a  platform  just  above  the  heads  of  the 
convention,  was  a  masterpiece  of  splendid  oratory.  He  began : 

And  when  asked  what  State  he  hails  from, 

Our  sole  reply  shall  be, 
He  comes  from  Appomattox, 

And  its  famous  apple-tree. 

It  was  pretty 'difficult  for  Garfield  to  follow  this  speech  in  the  tempest 
of  applause  which  came  after  it.  There  was  nothing  stimulant  or  ro- 
mantic in  the  plain  wisdom  of  John  Sherman.  It  was  like  reading  a 
passage  from  "Poor  Richard's  Almanac"  after  one  of  the  lofty  chapters 
of  the  Psalms  of  David.  Garfield  began  quietly: 

"I  have  witnessed  the  extraordinary  scene  of  this  convention  with  deep 
solicitude.  Nothing  touches  my  heart  more  quietly  than  a  tribute  of  honor  to 
a  great  and  noble  character.  But  as  I  sat  in  my  seat  and  witnessed  this  dem- 
onstration, this  assemblage  seemed  to  me  a  human  ocean  in  a  tempest.  I  have 
seen  the  sea  lashed  into  fury  and  tossed  into  spray,  and  its  grandeur  moves 
the  soul  of  the  dullest  man ;  but  I  remember  that  it  is  not  the  billows,  but  the 
calm  level  of  the  sea  from  which  all  heights  and  depths  are  measured.  When 
the  storm  has  passed  and  the  hour  of  calm  settles  on  the  ocean,  when  the  sun- 
light bathes  its  peaceful  surface,  then  the  astronomer  and  surveyor  take  the 
level  from  which  they  measure  all  terrestrial  heights  and  depths. 

"Gentlemen  of  the  Convention,  your  present  temper  may  not  mark  the 
healthful  pulse  of  our  people.  When  your  enthusiasm  has  passed,  when  the 
emotions  of  the  hour  have  subsided,  we  shall  find  below  this  storm  and  passion 
that  calm  level  of  public  opinion  from  which  the  thoughts  of  a  mighty  people 
are  to  be  measured,  and  by  which  their  final  action  will  be  determined. 

"Not  here,  in  this  brilliant  circle  where  fifteen  thousand  men  and  women 
are  fathered,  is  the  destiny  of  the  Republic  to  be  decreed  for  the  next  four 
years  —  not  here,  where  I  see  the  enthusiastic  faces  of  seven  hundred  and 
fifty-six  delegates,  waiting  to  cast  their  lot  into  the  urn  and  determine  the 


THE  NATIONAL   CONVENTION  831 

choice  of  the  Republic;  but  by  four  millions  of  Republican  firesides,  where 
the  thoughtful  voters,  with  wives  and  children  about  them,  with  the  calm 
thoughts  inspired  by  love  of  home  and  country,  with  the  history  of  the  past, 
the  hopes  of  the  future,  the  reverence  for  the  great  men  who  have  adorned 
and  blessed  our  nation  in  days  gone  by,  burning  in  their  hearts —  there  God 
prepares  the  verdict  which  will  determine  the  wisdom  of  our  work  to-night. 
Not  in  Chicago,  in  the  heat  of  June,  but  at  the  ballot-boxes  of  the  Republic,  in 
the  quiet  of  November,  after  the  silence  of  deliberate  judgment,  will  this  ques- 
tion be  settled." 

Conkling,  while  executing  the  admiration  of  all  men  for  his  dexterity 
and  ability,  lost  ground  at  every  step.  He  made  a  foolish  attempt  to 
compel  the  passage  of  a  resolution  depriving  of  their  rights  to  vote  dele- 
gates who  refused  to  pledge  themselves  to  support  the  choice  of  the 
convention  whoever  it  might  be.  His  speech  nominating  Grant  con- 
tained a  sneer  at  Elaine.  So,  while  he  held  his  forces  together  to  the 
last,  he  made  it  almost  impossible  for  any  man  who  differed  from  him 
in  the  beginning  to  come  to  him  at  the  end.  On  the  contrary  every- 
thing that  Garfield  said  was  marked  by  good  nature  and  good  sense. 
I  said  on  the  first  day  of  the  convention  that  in  my  opinion  if  the  dele- 
gates could  be  shut  up  by  themselves  and  not  permitted  to  leave  the 
room  until  they  agreed,  the  man  on  whom  they  would  agree  would  be 
General  Garfield.  This  desire  became  more  and  more  apparent  as 
the  convention  went  on.  At  last,  on  the  thirty-sixth  ballot,  and  the  sixth 
day  of  the  convention,  the  delegates  who  had  previously  voted  for  other 
candidates  than  Grant,  began  to  wheel  into  line  for  Garfield.  Gar- 
field  had  one  vote  from  the  State  of  Pennsylvania  in  previous  ballots. 
But  on  the  thirty-fourth  ballot  in  Wisconsin,  the  last  State  to  vote  in 
alphabetical  order,  had  given  him  her  sixteen  votes,  and  on  the  thirty- 
sixth  ballot  she  was  joined  by  the  delegates  who  had  voted  for  other 
candidates  than  Grant.  Grant  held  together  his  forces  till  the  last, 
receiving  three  hundred  and  thirteen  votes  on  the  thirty-fifth  ballot, 
and  three  hundred  and  sixty  on  the  thirty-sixth.  It  was  a  sublime 
movement,  which  it  was  hoped  would  determine  the  destiny  of  the 
Republic  for  many  years,  a  hope  which  was  cruelly  disappointed  by 
Garfield's  untimely  death.  It  was,  as  might  be  well  believed,  a  move- 
ment of  sublime  satisfaction  to  me.  Garfield  had  been  my  friend  for 
many  years.  I  had  sat  close  to  him  in  the  House  of  Representatives 
for  three  terms  of  Congressional  service.  He  had  been  my  guest  at 
my  house  in  Worcester;  and  I  had  been  his  colleague  on  the  Electoral 
Commission  in  1876.  He  had  been  educated  at  a  Massachusetts  col- 
lege. He  was  of  old  Middlesex  County  stock.  We  were  in  thorough 
accord  in  our  love  for  New  England,  our  firm  faith  in  her  hereditary 
principles,  and  our  pride  in  her  noble  history. 

Garfield  had  been  charged,  in  accepting  the  nomination  for  the 
Presidency,  with  having  been  untrue  to  the  interests  of  John  Sherman, 


832  AMERICAN   FEDERAL   GOVERNMENT 

who  was  the  candidate  of  Ohio,  and  whom  Garfield  had  supported 
faithfully  through  every  ballot.  The  charge  is  absolutely  unjust.  Mr. 
Sherman's  nomination  was  seen  by  everybody  to  have  been  absolutely 
impossible  long  before  the  final  result.  I  was  in  constant  consultation 
with  leaders  of  the  different  delegations  who  were  trying  to  unite  their 
forces.  There  never  was  any  considerable  number  of  those  persons 
who  thought  the  nomination  of  Mr.  Sherman  practicable,  notwith- 
standing the  high  personal  respect  in  which  they  held  him.  At  the  close 
of  the  thirty-fourth  ballot,  when  Garfield  received  seventeen  votes,  and 
the  following  incident  took  place : 

Mr.  GARFIELD  of  Ohio:  "Mr.  President " 

The  PRESIDENT:  "For  what  purpose  does  the  gentleman  rise?" 

Mr.  GARFIELD:  "Rise  to  a  question  of  order." 

Mr.  GARFIELD:  "I  challenge  the  correctness  of  the  announcement.  The 
announcement  contains  votes  for  me.  No  man  has  a  right,  without  the  consent 
of  the  person  voted  for,  to  announce  that  person's  name,  and  vote  for  him,  in 
this  convention.  Such  consent  I  have  not  given." 

The  PRESIDENT:  "The  gentleman  from  Ohio  is  not  stating  a  question  of 
order.  He  will  resume  his  seat.  No  person  having  received  a  majority  of  the 
votes  cast,  another  ballot  will  be  taken.  The  Clerk  will  call  the  roll." 

This  verbatim  report  is  absolutely  correct,  except  that  where  there  is 
a  period  at  the  end  of  Mr.  Garfield's  last  sentence  there  should  be  a 
dash,  indicating  that  the  sentence  was  not  finished.  I  recollect  the  in- 
cident perfectly.  I  interrupted  him  in  the  middle  of  his  sentence.  I 
was  terribly  afraid  that  he  would  say  something  that  would  make  his 
nomination  impossible,  or  his  acceptance  impossible,  if  it  were  made. 
I  do  not  believe  it  ever  happened  before  that  anybody  who  attempted 
to  decline  the  Presidency  of  the  United  States  was  to  be  prevented  by  a 
point  of  order,  or  that  such  a  thing  will  ever  happen  again. 

During  the  thirtieth  ballot  a  vote  was  cast  by  a  delegate  from  the 
Territory  of  Wyoming  for  General  Philip  H.  Sheridan.  General  Sheri- 
dan, who  was  upon  the  platform  as  a  spectator,  came  forward  instantly 
and  said:  "I  am  very  much  obliged  to  the  delegate  from  Wyoming  for 
mentioning  my  name  in  this  convention,  but  there  is  no  way  in  which  I 
could  accept  a  nomination  from  this  convention,  if  it  were  possible, 
unless  I  should  be  permitted  to  turn  it  over  to  my  best  friend."  The 
President  said:  "The  Chair  presumed  the  unanimous  consent  of  the 
convention  to  permit  the  illustrious  soldier  who  has  spoken  to  interrupt 
its  order  for  that  purpose.  But  it  will  be  a  privilege  accorded  to  no 
other  person  whatever."  The  General's  prompt  suppression  of  this 
attempt  to  make  him  a  candidate  was  done  in  a  direct  and  blunt  sol- 
dierly fashion.  I  did  not  think  it  best  to  apply  to  him  the  strictness  of 
parliamentary  law;  and  in  that  I  was  sure  of  the  approval  of  the  con- 
vention. But  the  precedent  of  permitting  such  a  body  to  be  addressed 


THE  NATIONAL   CONVENTION  833 

under  any  circumstances  by  a  person  not  a  member  would  be  a  danger- 
ous one,  if  repeated.  Perhaps  I  may  with  propriety  add  one  thing  of 
personal  nature.  It  has  been  sometimes  charged  that  the  delegates 
from  Massachusetts  were  without  great  influence  in  shaping  the  result 
of  this  convention.  They  moved,  and  carried,  against  a  formidable 
opposition,  the  civil  service  plank,  which  embodied  the  doctrine  of  civil 
service  reform  as  among  the  doctrines  of  the  Republican  Party.  Of 
whatever  value  may  be  attributed  to  the  humble  services  of  the  President 
of  the  Convention,  they  are  entitled  to  the  credit.  They  had,  I  think, 
more  to  do  than  any  other  delegation  with  effecting  the  union  upon 
Garfield.  Of  course  the  wish  of  Mr.  Elaine  had  very  great  influence 
indeed.  I  think  he  preferred  Garfield  to  any  other  person  except  Robert 
Lincoln,  of  Illinois,  of  whom  he  spoke  to  me  as  a  person  from  whom  it 
would  be  impossible  to  keep  the  votes  of  the  colored  delegates  from 
the  South,  and  who  would  be,  by  reason  of  the  respect  felt  for  his 
father's  memory,  highly  acceptable  through  the  country.  But  Mr. 
Lincoln,  under  the  circumstances,  could  not  have  got  the  support  of  his 
own  State,  and  without  it  it  seemed  unwise  to  attempt  a  union  upon  him. 


THE  DEMOCRATIC   CONVENTION  OF   1904' 
BY  ALFRED  PEARCE  DENNIS 

IN  the  last  national  campaign  no  political  maxim  fell  with  greater 
unction  and  finality  from  the  mouths  of  Democratic  orators  than  the 
apothegm:  "Our  government  is  one  of  laws,  not  men."  To  the  mind 
of  the  foreign  student  legalism  is  of  the  essence  of  American  political 
institutions.  The  competence  of  executive  officials,  both  federal  and 
State,  is  not  only  strictly  defined  by  the  organic  law  but  further  limited 
by  the  prescriptions  of  statutory  enactment.  Legislative  bodies  in  turn 
are  strictly  subordinate  under  the  provisions  of  organic  law;  they  can 
not  step  outside  the  legal  bounds  defined  by  written  constitutions.  Every 
executive  official  in  the  land,  from  the  occupant  of  the  White  House  to 
the  hog-reeve  of  a  New  England  village,  is  strictly  limited  in  the  scope 
of  his  administrative  duties  by  laws  which  he  is  powerless  to  alter. 
Every  law-making  body,  in  turn,  from  the  national  Congress  to  the  petti- 
est city  council,  is  restrained  in  its  legislative  competence  by  the  limita- 
tions of  laws  which  it  may  not  change.  As  one  notes  the  immense  mass 
and  particularity  of  our  statutory  law  and  the  network  of  minute  restric- 
tions cast  about  legislatures  by  the  fundamental  law,  one  naturally 
concludes  that  American  governmental  doctrine  is  but  an  amplified 
affirmation  of  Job's  theory  that  "  man  is  born  unto  trouble  as  the  sparks 
fly  upward,"  and  that,  if  he  is  to  be  saved,  it  is  not  to  be  through  his 

1  From  the  Political  Science  Quarterly,  June,  1905. 
53 


834  AMERICAN   FEDERAL   GOVERNMENT 

own  goodness  of  heart  or  personal  discretion,  but  through  the  external 
compulsion  of  unyielding  law. 

In  view  of  the  legalism  that  pervades  our  political  processes,  one  is 
amazed  to  find  that  the  great  bodies  which  name  our  presidents  are 
subjected  to  no  external  legal  control.  The  idea  of  a  nominating  con- 
vention is  neither  a  political  inheritance  nor  a  conscious  contrivance. 
It  is  an  evolutionary  product;  it  is  a  development  of  the  party  system, 
just  as  the  party  system,  in  turn,  is  the  product  of  a  decentralized  ad- 
ministrative system.  A  multitude  of  men  must  be  selected  to  express 
and  also  to  execute  the  will  of  the  State.  Our  theory  of  government 
separates  the  functions  of  expression  and  execution.  The  harmonious 
working  of  the  governmental  system  demands  the  coordination  of  the 
two.  The  means  of  coordination,  as  is  clearly  shown  by  Professor 
Goodnow  in  his  Politics  and  Administration,  has  been  found  in  an 
extra-legal  institution,  the  political  party.  The  national  convention, 
which  represents  the  supreme  expression  of  the  will  of  the  party,  is,  like 
the  party  itself,  an  extra-legal  institution.  Great  changes,  unrecognized 
by  the  law  and  unenforced  by  the  courts,  have  been  wrought  in  our 
institutional  fabric  through  the  unfolding  processes  of  national  life. 
The  national  convention,  an  unfathered  institutional  waif,  may  at  no 
distant  day  be  formally  adopted  and  placed  under  the  control  of  the 
national  government.  Much  may  be  said  for  the  formal  recognition 
and  legal  control  of  this  robust  extra-legal  institution,  if  the  national 
convention  is  to  represent  the  best  thought  and  the  highest  motives  of 
the  party  which  calls  it  into  being. 

The  conduct  of  the  last  Democratic  national  convention  furnishes 
strong  presumptive  evidence  that  the  evolutionary  process  will  not  stop 
at  the  present  point,  but  that  changes  in  the  direction  of  increased 
dignity  and  deliberation  will  be  demanded  of  the  great  bodies  which 
nominate  our  highest  governmental  magistrate.  That  the  St.  Louis 
convention  was,  in  any  true  sense,  a  deliberative  body  will  be  denied 
by  any  close  observer  of  its  proceedings.  A  thousand  delegates  and  an 
equal  number  of  alternates  elected  by  various  processes  —  many  of  the 
alternates  actually  present  by  no  process  at  all  —  met  in  the  hottest 
month  of  the  year  in  the  pit  of  an  oven-like  building  in  one  of  the  hottest 
cities  of  the  border  States.  Crowded  in  with  delegates  and  alternates 
at  the  bottom  of  the  pit  were  reporters,  amateur  policemen,  and 
hangers-on  of  every  description.  Ten  thousand  spectators  filled  the 
huge  galleries,  and  a  motley  throng  of  jostling,  perspiring  humanity 
jammed  the  aisles  and  exits  —  the  whole  comprising  the  dramatis  per- 
sona in  a  serio-comic  four-act  extravaganza,  known  as  the  St.  Louis 
convention.  Strictly  speaking,  there  were  no  spectators ;  all  were  actors. 
If  not  privileged  to  occupy  the  center  of  the  stage,  each  person  present 
was  privileged  to  occupy  a  place  in  that  assemblage  which  theatrical 
folk  describe,  without  differentiation,  as  the  "mob."  It  is  all  the  same 


THE   NATIONAL   CONVENTION  835 

whether  soldiers,  village  clowns,  or  chorus  girls  compose  this  assemblage. 
The  mob  is  an  indispensable  adjunct  in  the  representation  of  a  great 
spectacular  piece.  In  the  St.  Louis  Coliseum  the  mob  overplayed  its 
part.  It  was  not  content  to  occupy  the  background,  but  again  and 
again  persisted  in  usurping  the  functions  of  the  real  actors  in  the  fore- 
ground who  had  come  upon  the  stage  with  speaking  parts. 

As  a  delegate  to  the  convention,  the  writer  ventures  to  record  some 
personal  impressions  of  the  conduct  of  that  body,  and  briefly  to  add  a 
conclusion  or  two  as  to  the  bearing  of  it  all  upon  future  methods  of 
selecting  presidential  nominees. 

The  prologue  of  the  drama  was  spoken  by  Mr.  John  Sharp  Williams, 
temporary  chairman  of  the  convention.  Even  in  a  real  play  not  much 
attention  is  given  to  the  prologue.  The  arrival  of  late-comers,  the  ar- 
rangement of  seats,  the  buzz  of  conversation  go  on.  Playgoers  begin  to 
settle  down  and  give  attention  when  the  curtain  rises  and  the  real  action 
begins.  After  a  few  minutes  of  curious  interest  in  Mr.  Williams,  the 
mob  fell  to  discussing  its  own  affairs.  The  speaker's  voice,  overtaxed 
in  the  effort  to  make  itself  heard  above  the  confusion,  broke  down 
almost  entirely,  and  after  the  first  ten  minutes  was  scarcely  audible 
even  to  the  front-benchers.  The  address  as  printed  is  sensible,  well- 
phrased,  and  keen  in  argument,  but  as  delivered  the  speech  was  a  fail- 
ure. It  was  trying,  even  for  delegates,  to  sit  for  an  hour  and  forty 
minutes  watching  the  moving  lips  and  occasional  gestures  of  a  distant 
speaker,  and  to  fail  utterly  to  follow  the  thread  of  his  argument.  The 
mention  of  Mr.  Cleveland's  name  infused  a  tonic  property  into  the 
dreary  proceeding.  The  cheering  of  near-by  delegates  was  taken  up 
by  others,  reached  the  galleries,  and  continued  without  cessation  for 
thirteen  minutes. 

At  the  conclusion  of  Mr.  Williams's  address  the  committee  on  cre- 
dentials submitted  its  report.  Two  points  of  interest  are  to  be  noted 
in  this  connection :  first,  the  ruling  of  the  chair  that  it  is  not  within  the 
power  of  the  committee  on  credentials  to  admit  delegates  from  the  Philip- 
pines, inasmuch  as  these  islands  are  declared  by  the  Supreme  Court  not 
to  be  a  part  of  the  United  States ;  and  second,  the  adoption  by  the  con- 
vention of  the  committee's  majority  report  seating  the  Hopkins  delegates 
from  the  State  of  Illinois.  At  this  stage  Colonel  William  J.  Bryan  ap- 
peared for  the  Harrison  contesting  delegates  and  moved  the  adoption 
of  a  minority  report.  His  address  aroused  the  galleries  to  a  frenzy  of 
enthusiasm.  Per  se  the  appeal  was  a  powerful  one,  and  it  is  safe  to  assert 
that  the  majority  of  the  delegates  were  convinced  that  the  cause  Colonel 
Bryan  championed  was  relatively  if  not  absolutely  righteous.  And  yet, 
on  the  balloting,  delegation  after  delegation  voted  to  validate  the  cre- 
dentials of  men  who  were  obviously  not  entitled  to  them.  There  were 
two  reasons  for  this.  First,  the  feverish  dread  of  a  "Bryan  stampede," 
and  second,  the  desire  to  rebuke  the  obvious  attempt  of  the  mob  to  run 


836  AMERICAN   FEDERAL   GOVERNMENT 

the  convention.  Ten  thousand  people  had  cheered  Colonel  Bryan  wildly 
and  irresponsibly  during  the  hour  he  held  the  platform,  and  this  same 
crowd  had  refused  to  listen  three  minutes  without  derisive  shouts  and 
interruptions  to  the  men  who  vainly  endeavored  in  the  hubbub  to  present 
the  other  side  of  the  case.  It  was  later,  in  the  Committee  on  Resolu- 
tions, that  Colonel  Bryan  won  his  most  signal  victory.  On  the  conven- 
tion floor,  where  he  was  deliriously  supported  by  a  vulgar  claque  that 
refused  his  opponents  a  decent  hearing,  and  on  an  issue  for  which  he 
was  thrice-armed  because  of  the  justice  of  his  contention,  Colonel  Bryan 
was  beaten  by  a  vote  of  647  to  299. 

With  the  adoption  of  the  report  of  the  committee  on  permanent  organ- 
ization, Hon.  Champ  Clark,  as  permanent  chairman,  read  a  long  and 
rambling  speech,  which  had  a  sedative  effect  upon  his  fellow  Missou- 
rians  in  the  galleries,  who  could  but  imperfectly  hear  it,  and  a  benumbing 
effect  upon  those  near-by  delegates  who  had  not  left  their  seats  before 
its  conclusion.  This  was  the  end  of  the  second  day's  labor  of  the  con- 
vention. 

While  waiting  for  the  report  of  the  committee  on  resolutions,  the 
convention  occupied  the  morning  session  of  the  third  day  in  roll-calls 
for  the  formal  selection  of  the  new  national  committee  and  the  naming 
of  honorary  vice-presidents.  During  a  lull  in  this  time-killing  employ- 
ment some  one  called  for  a  speech  from  Captain  Richmond  Pearson 
Hobson.  Captain  Hobson  possesses  an  impressive  mien  and  a  resonant 
bass  voice.  "We  want  no  Cromwell  in  this  land  of  liberty !"  he  loudly 
declared.  Here  was  relief  from  the  tedium  of  business  and  from  the 
strain  of  listening  to  speeches  which  could  not  be  heard.  The  crowd 
in  the  galleries  sank  restfully  back  into  their  seats  and  gratefully  gave 
ear.  "I  can  see,"  cried  the  man  of  arms  in  notes  of  bugle  clearness, 

the  plains  of  Illinois  as  the  infantry  assembles.  I  can  see  the  hill-tops  of  the 
Hudson  and  the  Mohawk,  where  the  artillery  is  located.  I  look  to  the  ranks  of 
Democracy  when  our  battle-flags  are  unfurled.  I  see  a  Wellington  take  up  the 
standard  of  Democracy;  yes,  from  New  York  to  Illinois,  and  from  Illinois  to 
California,  the  battle  lines  are  extended.  Here  are  our  armies;  let  us  make 
the  Republicans  give  name  to  the  battle  field —  let's  make  them  call  it 
Waterloo ! 

Now  the  cold-eyed  cynic  might  possibly  regard  this  performance  as  a 
perfect  and  exact  illustration  of  the  forcible-feeble  style  of  oratory,  but 
the  piece  pleased  the  audience  mightily.  With  the  exception  of  Colonel 
Bryan  no  man  who  addressed  the  convention  was  hearkened  to  with 
more  deferential  attention  than  was  Captain  Hobson. 

The  all-night  session  which  resulted  in  the  nomination  of  Judge 
Parker  opened  with  the  reading  of  the  platform  by  Senator  John  W. 
Daniel.  The  Coliseum  was  thronged,  but  there  was  nothing  spectacular 
about  the  platform,  and  the  mob  was  there  for  a  spectacle.  Every  man 


THE  NATIONAL   CONVENTION  837 

seemed  free  to  wander  as  he  willed.  Informal  social  caucuses  met  here 
and  there.  A  hum  and  a  buzz  as  of  five  hundred  afternoon  tea-parties 
filled  the  great  hall.  On,  on,  read  the  speaker,  never  faltering,  never 
raising  his  voice,  never  heard.  He  might  have  been  describing  the  mural 
decorations  of  the  imperial  palace  at  Pekin  or  the  habits  of  the  Missis- 
sippi river  catfish,  for  all  his  auditors  knew  or  cared.  At  the  close  no 
one  expressed  approval  or  disapproval  of  the  party  creed  thus  formally 
enunciated.  Of  the  character  of  the  platform  the  delegates  and  mob 
alike  could  form  no  opinion  from  the  evidence  laid  before  the  convention. 
With  the  adoption  of  the  platform  an  all-night  carnival  of  oratory 
began.  Eight  names  were  formally  placed  before  the  convention,  with 
a  total  of  thirty-five  nominating  and  seconding  speeches.  The  majority 
of  these  speeches  were  stupid  and  tiresome.  The  cheap  grandiloquence 
of  the  panegyrical  orator  ordinarily  rose  to  its  height  with  the  enuncia- 
tion of  the  favorite  son's  name  at  the  end  of  the  speech.  There  were 
some  notable  deviations  from  the  prevailing  type  of  convention  declama- 
tion. Hon.  Martin  W.  Littleton  proved  himself  a  master  of  the  difficult 
art  of  convention  oratory.  In  his  address  naming  Judge  Parker,  Mr. 
Littleton's  voice  rose  to  clearness  and  strength;  his  words  certainly 
stirred  the  imagination  if  they  did  not  convince  the  understanding ;  and 
his  speech  really  infused  an  element  of  genuine  enthusiasm  into  the 
Parker  demonstration  which  ensued.  The  ponderous  oratory  of  Mr. 
D.  M.  Delmas,  who  placed  the  name  of  Hon.  William  R.  Hearst  before 
the  convention,  proceeded  with  the  stately  gravity  and  inexorable  se- 
quence of  the  cosmic  process  itself.  But  the  piece  dragged  after  five 
minutes,  and  few  gave  heed  except  those  who  felt  it  their  business  to  do 
so.  Of  the  Hearst  seconding  speeches,  that  of  Mr.  Clarence  Darrow, 
of  Chicago,  was  refreshing  in  its  obvious  sincerity.  With  the  impetuous 
vigor  of  a  Mirabeau  he  urged  the  convention  to  pause  before  placing 
men  in  charge  who,  in  past  time,  had  scuttled  the  Democratic  ship. 
Quite  out  of  the  ordinary,  too,  was  Hon.  Champ  Clark's  good-natured 
nominating  speech  for  Senator  Cockrell.  "This  is  a  great  historical 
occasion,"  he  began,  "and  I  am  about  to  make  a  great  historical  speech." 
"They  say  that  Roosevelt  is  a  brave  man,"  he  declared  in  conclusion, 
"but  old  man  Cockrell  is  as  brave  as  he."  In  fine  contrast  to  this  speech 
was  the  dignified  and  impressive  speech  of  General  Collins,  presenting 
the  name  of  Hon.  Richard  Olney,  of  Massachusetts.  In  a  voice  ade- 
quate to  the  trying  occasion  he  appealed  in  a  brief,  sententious  and 
sincere  argument  to  the  intelligence  of  the  convention.  His  words  were 
followed  by  the  delegates  with  the  closest  attention.  Two  more  hours 
dragged  wearily  by,  as  orator  after  orator  rose  in  the  call  of  states.  It 
was  past  four  o'clock  in  the  morning  when  Wisconsin  was  reached  on 
the  roll-call  and  Colonel  Bryan  strode  to  the  platform.  It  was  for  this 
that  fifteen  thousand  men  and  women  had  remained  steadfastly  in  the 
uncomfortable  seats  and  the  vitiated  atmosphere  of  a  veritable  fire-trap 


838  AMERICAN  FEDERAL   GOVERNMENT 

all  the  long  night.  The  most  ingenious  stage  director  could  not  have 
planned  a  more  theatrical  setting.  Earlier  in  the  night  Nebraska  had 
given  way  to  Wisconsin,  which  presented  the  name  of  Wall.  Wisconsin 
now  yielded  to  Nebraska,  and  thus  gave  Colonel  Bryan  the  last  word. 
A  passionate  cry  burst  from  the  lips  of  the  multitude  as  the  great  cham- 
pion of  social  democracy  advanced  to  the  platform.  The  appearance 
of  the  man  heightened  the  dramatic  effect  of  the  scene.  The  marks  of 
battle  and  of  sleeplessness  were  upon  him.  His  face  was  ashen,  the  lips 
compressed  to  a  thin  line,  the  eyes  sunken  in  their  sockets;  the  voice 
was  husky  and  the  figure  drooped  with  fatique.  He  began  to  speak.  A 
passion  of  soul  seemed  to  communicate  its  fire  to  the  spent  body.  The 
dull  eyes  of  the  speaker  glowed  with  an  almost  fanatical  earnestness. 
The  gestures  fell  in  quick,  nervous  rhythm ;  the  voice,  gaining  in  strength, 
rang  out  clear.  The  man  seemed  essentially  a  preacher,  the  embodiment 
of  force  and  earnestness,  with  all  the  fire  of  a  Whitefield  and  the  passion 
of  a  Chrysostom. 

Eight  years  ago  [he  said]  a  Democratic  convention  placed  in  my  hands  the 
standard  of  the  party,  and  gave  me  the  commission  as  its  candidate.  Four 
years  later  that  commission  was  renewed.  I  come  to-night  to  this  Democratic 
convention  to  return  the  commission,  and  to  say  that  you  may  dispute  whether 
I  fought  a  good  fight,  you  may  dispute  whether  I  finished  my  course,  but  you 
can  not  deny  that  I  have  kept  the  faith. 

With  tense,  drawn  faces  and  streaming  eyes  men  hung  upon  the  words 
of  the  orator,  as  with  studied  pathos  he  reviewed  the  causes  of  his  defeat 
and  asserted  that,  though  men  of  the  party  had  deserted  him  in  time  of 
need,  he  himself  would  remain  true  to  the  principles  of  his  party.  As 
he  closed  with  a  summing  up  of  the  whole  case  against  Parker's  nomina- 
tion, the  sunlight  of  another  midsummer's  day  was  streaming  through 
the  windows  of  the  convention  hall,  dimming  the  feeble  electric  lights 
and  throwing  the  great  yellow-decked  roof  into  shadow.  An  outburst 
of  frenzied  cheering,  elemental  and  uncontrollable  like  the  roaring  of 
the  sea,  rose  from  the  ranks  of  the  mob,  while  from  the  floor  of  the  great 
hall,  littered  over  with  papers,  the  dust  rose  under  the  trampling  of 
many  feet  as  the  smoke  of  battle  rises  from  a  crowded,  hard-fought  field. 
No  stage  could  provide  such  a  setting.  No  playgoing  audience  could 
afford  such  psychic  possibilities.  Nerves,  racked  and  worn  by  nine  hours 
of  speechmaking,  responded  to  a  supreme  stimulus,  not  in  the  conven- 
tional language  of  applause  but  in  the  incoherent  language  of  hysteria. 
It  was  a  study  in  mob  psychology ;  a  scene  which  witnessed  once  is  un- 
forgettable. At  last  the  tumult  and  the  shouting  dies ;  the  call  of  States 
begins;  Judge  Parker  is  nominated  on  the  first  ballot.  Colonel  Bryan's 
impassioned  appeal  had  not  changed  the  vote  of  a  single  delegate. 

An  interesting  point  of  order  was  raised  during  the  roll-call  of  States 
and  decided  by  the  presiding  officer.  When  the  State  of  Ohio  was  reached 


THE  NATIONAL   CONVENTION  839 

the  chairman  of  the  delegation  announced  a  vote  of  46  for  Parker.  A 
demand  was  immediately  made  for  a  poll  of  the  delegation.  The  dele- 
gation was  polled  and  the  result  announced:  Parker  28,  McClellan  9, 
Hearst  6,  Cockrell  2,  Olney  i.  The  point  of  order  was  now  raised  by  a 
member  of  the  delegation  that  the  Ohio  state  convention  had  no  right 
to  instruct  the  delegates  to  vote  as  a  unit,  inasmuch  as  the  district  dele- 
gates had  received  their  credentials  from  conventions  held  prior  to  the 
time  of  holding  the  state  convention.  The  point  of  order  was  overruled 
by  the  chair  in  these  words: 

By  express  rule  of  the  Democratic  convention,  the  delegates  come  from  a 
state  and  not  from  districts.  Under  the  call  for  delegates  to  the  convention 
each  state  is  allowed  as  many  delegates  as  it  has  senators  and  representatives 
multiplied  by  two,  and  these  delegates  are  the  delegates  of  the  state  and  not 
the  delegates  of  the  districts,  no  matter  how  chosen. 

It  was  therefore  ordered  that  the  entire  vote  of  Ohio  be  recorded  for 
Parker,  although  his  actual  strength  was  but  28  out  of  46  votes.  This 
ruling  illustrates  anew  the  distinctive  difference  between  the  practice 
of  a  Democratic  and  that  of  a  Republican  national  convention.  There 
is  an  intimate  relationship  at  present  between  this  so-called  unit  rule  and 
the  two-thirds  rule  of  the  Democratic  convention,  though  there  is  no 
connection  in  origin  between  the  two  rules.  So  long  as  the  unit  rule  is 
upheld,  the  two-thirds  rule  will  also  prevail.  Suppose,  as  was  suggested 
last  spring  in  conservative  circles  when  the  Hearst  boom  began  to  assume 
portentous  proportions,  that  the  two-thirds  rule  had  been  abrogated  by 
the  convention,  on  the  general  theory  that  it  is  an  undemocratic  principle 
to  give  a  faction  of  one-third  the  legal  right  to  defeat  the  choice  of  the 
majority.  Such  a  change  might  actually  confer  upon  a  minority  not 
only  the  negative  power  of  defeating  a  nomination  but  the  positive  power 
of  making  a  nomination.  A  number  of  large  states  with  pretty  evenly 
divided  delegations  might  so  combine  as  to  control,  under  the  unit  rule, 
a  majority  of  the  votes  in  the  convention.  A  candidate  might  thus  be 
nominated  who  was  really  the  choice  of  only  a  small  minority  of  the 
delegates,  were  the  two-thirds  rule  abrogated  and  the  unit  rule  retained. 
Again,  great  Republican  states,  such  as  Pennsylvania,  Massachusetts, 
Ohio,  Illinois  and  Iowa,  might  successfully  combine  and  effect  a  nomina- 
tion under  a  bare  majority  rule  and  yet  not  contribute  a  single  electoral 
vote  to  the  success  of  the  candidate  so  nominated.  Thus  the  perpetua- 
tion of  the  two-thirds  rule  rests  upon  the  continuance  of  the  unit  rule, 
and  the  perpetuation  of  the  unit  rule  is  due  in  large  measure  to  the 
traditional  attitude  of  the  Democratic  party  on  the  question  of  state 
sovereignty.  In  Democratic  theory,  each  state  controls  its  delegation. 
The  Democratic  convention  recognizes  an  authority  higher  than  itself. 
The  Republican  convention  does  not.  The  Republican  convention  has 
never  allowed  the  states  to  use  the  unit  rule.  A  clear  statement  of  the 


840  AMERICAN   FEDERAL   GOVERNMENT 

Republican  doctrine  was  made  by  a  delegate  from  Kansas  in  the  con- 
vention of  1876,  when  the  question  was  raised  as  to  the  acceptance  of  a 
unit  vote  from  the  state  of  Pennsylvania. 

The  principle  involved  in  this  controversy  is  whether  the  state  of  Penn- 
sylvania shall  make  laws  for  this  convention  or  whether  this  convention  is  su- 
preme and  shall  make  its  own  laws.  We  are  supreme.  We  are  original.  We 
stand  here  representing  the  great  Republican  party  of  the  United  States,  and 
neither  Pennsylvania  nor  New  York  nor  any  state  can  come  in  here  and  bind 
us  down  by  their  caucus  resolutions.1 

One  further  fact,  however,  is  to  be  noted  with  respect  to  the  unit  rule 
of  the  Democratic  convention.  In  case  no  instructions  are  given  by  a 
state  to  its  delegation,  the  convention  assumes  authority  and  allows  each 
individual  in  the  delegation  to  vote  according  to  his  preference.  For 
example,  in  the  St.  Louis  convention,  Nebraska's  vote  was  announced 
and  recorded  as  follows:  Hearst  4,  Cockrell  4,  Pattison  4,  Miles  i,  Wall 
i,  Gray  i,  Olney  i.  The  unit  rule  of  the  Democratic  convention  is  not 
an  affirmative  rule  at  all.  It  is  simply  an  acknowledgment  that  the  states 
may  bind  their  delegations  if  they  so  choose.  Despite  the  immense 
amount  of  newspaper  clamor  for  the  abrogation  of  the  two-thirds  rule, 
and  the  protests  and  objurgations  of  the  minority  Hearst  members  on 
such  split  but  instructed  delegations  as  those  of  Ohio,  Indiana  and 
Massachusetts,  the  fight  for  the  modification  of  the  rules  was  never  at 
any  time  strong  enough  to  reach  the  convention  floor.  As  a  corollary 
to  the  unit  rule,  the  St.  Louis  convention,  through  the  ruling  of  its  chair- 
man, upheld  the  traditional  Democratic  doctrine  that  the  chairman  of 
an  instructed  delegation  is  entitled  to  cast  the  entire  vote  of  the  delega- 
tion whether  the  delegation  is  fully  represented  on  the  floor  or  not. 

Little  need  be  said  of  the  proceedings  of  the  convention  subsequent 
to  Judge  Parker's  nomination.  The  text  of  the  telegram  as  sent  by 
Judge  Parker  to  Hon.  Wm.  F.  Sheehan  is  as  follows: 

I  regard  the  gold  standard  as  firmly  and  irrevocably  established  and  shall  act 
accordingly  if  the  action  of  the  convention  to-day  shall  be  ratified  by  the  people. 
As  the  platform  is  silent  on  the  subject,  my  view  should  be  made  known  to  the 
convention,  and  if  it  is  proved  to  be  unsatisfactory  to  the  majority  I  request  you 
to  decline  the  nomination  for  me  at  once,  so  that  another  may  be  nominated 
before  adjournment. 

Great  excitement  prevailed  when  reports  of  the  Parker  telegram  leaked 
out  early  Saturday  afternoon.  Newspaper  extras  proclaimed  that  Parker 
had  declined  the  nomination,  and  garbled  versions  of  his  actual  message 
were  hawked  about  everywhere.  The  air  was  charged  with  uncertainty, 
bewilderment,  and  expectancy  when  the  delegates  assembled  for  the 

1  Carl  Becker,  "  The  Unit  Rule  in  National  Nominating  Conventions,"  American 
Historical  Review,  V,  no.  i,  p.  81. 


THE  NATIONAL   CONVENTION  841 

final  session.  The  Bryanites  affected  to  regard  the  message  as  a  cunning 
trick  of  the  Hill-Belmont-Sheehan  combination.  Senator  Tillman  vio- 
lently denounced  the  message  as  an  attempt  to  dictate  and  as  an  insult 
to  the  entire  convention.  The  majority  of  the  New  York  and  New  Jersey 
delegates  seemed  genuinely  pleased  with  the  message,  but  no  one  was 
jubilant.  The  situation  was  a  most  delicate  one  and  fraught  with  im- 
mense hazard.  The  opinion  of  many  thoughtful  delegates  at  the  time 
could  have  been  aptly  expressed  in  a  later  remark  of  Colonel  Bryan's : 
"It  is  a  manly  thing  for  a  man  to  express  an  opinion  before  the  conven- 
tion adjourns;  but  it  would  have  been  manlier  to  have  expressed  it 
before  the  convention  met."  The  southern  delegates  appeared  most 
deeply  stirred  by  the  telegram;  their  anxiety  and  doubt  were  strung  to 
an  intensity  almost  savage.  Southern  leaders  were  therefore  put  forward 
to  pacify  them.  After  some  hours'  work  Tillman  was  quieted  and  in- 
duced, in  conjunction  with  Williams  and  Vardaman  of  Mississippi, 
Daniel  of  Virginia  and  Carmack  of  Tennessee,  to  play  the  role  of  paci- 
ficator. The  anger  of  the  hotspurs  began  to  simmer  down.  A  notable 
speech  at  this  critical  juncture  was  made  by  a  northern  man,  Hon.  Charles 
S.  Hamlin  of  Massachusetts.  Mr.  Hamlin  as  a  member  of  the  platform 
committee  had  labored  indefatigably  for  a  gold  plank.  That  effort  had 
been  defeated  by  a  vote  of  35  to  15.  Mr.  Hamlin  explained  why  the 
minority  had  not  carried  the  fight  to  the  convention  floor,  and  closed 
with  an  eloquent  plea  for  despatching  a  message  prepared  by  John  Sharp 
Williams  to  Judge  Parker.  The  "Williams  message,"  which  virtually 
endorsed  the  position  taken  by  the  nominee  in  his  telegram  to  the  con- 
vention, read  as  follows: 

The  platform  adopted  by  this  convention  is  silent  upon  the  question  of  the 
monetary  standard,  because  it  is  not  regarded  by  us  a  possible  issue  in  this 
campaign,  and  only  campaign  issues  are  mentioned  in  the  platform.  There- 
fore there  is  nothing  in  the  views  expressed  by  you  in  the  telegram  just  re- 
ceived which  would  preclude  a  man  entertaining  them  from  accepting  a  nomi- 
nation on  said  platform. 

It  was  at  this  juncture  that  Colonel  Bryan  rose  from  a  sick-bed,  entered 
the  convention,  and  began  a  tedious  and  futile  protest  against  sending 
the  Williams  telegram.  Two  rambling  speeches  were  made,  the  last 
closing  with  the  impossible  suggestion  that  a  sort  of  catechismal  message 
be  sent  to  the  nominee,  seeking  explicit  answers  to  several  specific  ques- 
tions. The  convention  was  not  in  the  mood  of  the  night  before.  Here 
were  a  lot  of  earnest  men  striving  for  harmony,  willing  to  sink  individual 
preferences,  sick  of  factional  rancor  and  impatient  to  conclude  the  work 
of  the  convention.  The  speaker  recognized  that  his  appeal  fell  upon 
cold  if  not  resentful  ears.  He  accordingly  withdrew  his  amendment  and 
thus  escaped  a  crushing  vote  of  disapproval.  The  motion  to  send  the 
Williams  telegram  was  carried  by  the  overwhelming  vote  of  794  to  191. 


842  AMERICAN  FEDERAL   GOVERNMENT 

At  one  o'clock  Sunday  morning  Hon.  Henry  G.  Davis  was  nominated 
for  vice-president.  The  excitement  over  the  Parker  telegram  had  been 
absorbing.  A  benumbing  fatigue  dulled  all  further  interest  in  the  pro- 
ceedings and  imposed  an  effective  closure  rule  upon  discussion.  "Word 
was  passed  around  "  that  Davis  was  the  man  to  be  voted  for.  The 
writer  heard  little  talk  of  superannuation,  and  in  general  little  discussion 
of  availability  or  fitness.  When  the  roll  was  called,  chairmen  of  delega- 
tions wearily  rose  and  mechanically  uttered  the  name  of  Henry  G.  Davis. 
At  no  point  did  the  convention  so  absolutely  divest  itself  of  the  character 
of  a  deliberative  body  as  in  the  act  of  naming  an  octogenarian  for  second 
place  on  the  ticket. 

"Freshmen  "  members  of  the  national  Congress  are  wont  to  lament 
the  absence  of  a  spirit  of  cameraderie  in  the  House  of  Representatives. 
If  this  is  true  of  the  386  members  of  the  House  elected  for  two  years,  one 
can  readily  fancy  how  little  esprit  de  corps  is  to  be  found  in  an  assemblage 
of  one  thousand  men  who  exercise  their  group  functions  for  less  than  a 
week  and  then  disperse  forever.  Rivalry  between  parties  is  never  more 
bitter  than  factional  strife  within  parties.  Nothing  could  have  been 
more  bitter  than  Mr.  Rose's  castigation  of  the  Parkerites.  The  New 
York  men  themselves  were  divided.  To  scrutinize  the  faces  of  Murphy, 
Sheehan  and  McCarren  was  to  read  in  each  a  different  story  of  policies 
and  aspirations.  Outside  of  the  southern  belt  there  was  scarcely  a  state 
that  was  not  represented  by  a  divided  delegation.  The  unit  rule  half 
concealed  and  half  revealed  irreconcilable  principles  and  preferences. 
Even  the  Massachusetts  delegation,  pledged  to  support  the  candidacy  of 
a  "favorite  son,"  was,  beneath  the  surface,  divided;  five  of  its  members 
were  bitterly  opposed  to  Mr.  Olney.  The  convention  was  indeed  a  jar- 
ring, disintegrate  mass.  For  such  an  unorganized  mass,  competent 
leadership  was  a  prime  necessity.  The  biggest  and  most  influential  per- 
sonality in  the  convention  was  Colonel  Bryan's,  but  the  majority  of  the 
delegates  had  come  to  St.  Louis  with  the  firm  determination  not  to  be 
led  by  Colonel  Bryan.  The  delegates  therefore  turned  from  a  personality 
to  an  abstraction  in  quest  of  leadership.  They  turned  from  Bryan  to 
"conservatism."  In  the  name  of  conservatism  the  Hill-Sheehan-Guffey- 
Gorman  combination  "passed  around  the  word  "  for  the  nomination  of 
Henry  G.  Davis.  The  delegates  heard  and  obeyed. 

The  party  convention  is  a  pure  evolution,  and  we  may  look  to  see 
progressive  changes  in  the  conduct  of  this  extra-legal  body.  One  may 
forecast  the  direction  although  it  may  be  impossible  to  fathom  the  extent 
of  these  changes.  The  infinite  folly  of  planting  a  political  convention 
in  the  midst  of  a  howling  mob  of  ten  thousand  people  was  convincingly 
illustrated  in  the  last  Democratic  convention.  This  convention  could 
not,  except  by  courtesy,  be  called  a  deliberative  body.  Men  such  as 
Senator  Daniel  or  John  Sharp  Williams,  who  really  had  something  to 
say  to  the  convention,  were  not  shown  decent  consideration,  while  men 


THE  NATIONAL   CONVENTION  843 

who  had  a  buncombe  message  for  the  galleries  were  given  a  patient  hear- 
ing. It  was  really  the  galleries  that  demanded  the  circus  parades  of 
state  standards,  lithographs  and  flags  when  a  leading  candidate  was 
placed  in  nomination.  One  of  these  bogus  demonstrations  continued 
for  thirty-four  minutes.  It  was  the  galleries  that  dragged  Bryan  from 
his  sick-bed  to  prolong  the  agony  of  the  last  night's  session.  It  was  the 
galleries  that  hurled  insulting  and  indecent  epithets  at  speakers  in  the 
Illinois  contest,  because  they  were  espousing  a  cause  which  the  mob  did 
not  like.  With  hundreds  of  newspaper  men  present  and  wires  carrying 
the  convention  proceedings  to  every  news  center  in  the  Union,  the  inter- 
ests of  publicity  no  longer  demand  the  presence  of  ten  thousand  irrespon- 
sible people  in  the  convention  hall.  In  the  last  two  Democratic  state 
conventions  of  Massachusetts  all  spectators  other  than  newspaper  men 
were  rigidly  excluded  from  the  hall.  The  step  was  an  unpopular  one, 
but  the  bear-garden  features  which  too  often  have  disgraced  other  con- 
ventions were  effectively  eliminated;  and  enlightened  party  opinion 
heartily  supports  the  innovation. 

Again,  the  results  of  the  St.  Louis  convention  can  not  but  strengthen 
the  growing  conviction  that  the  time  is  approaching  for  a  change  in  the 
present  system  of  representation  in  the  convention.  The  anti-Parker 
combination  had  a  fighting  chance  of  success  up  to  the  moment  when 
Colonel  Guffey  delivered  the  68  votes  of  Pennsylvania  to  the  Parkerites. 
A  state  which  had  never  given  a  single  electoral  vote  to  a  Democratic 
nominee  turned  the  scale  decisively  and  clinched  the  nomination  of  a 
man  who  received  only  140  votes  in  the  electoral  college.  It  is  true  that 
the  solid  Democratic  states  of  tne  South  were  behind  Judge  Parker's 
candidacy.  Men  such  as  Governor  Vardaman  of  Mississippi  were  in 
line  for  the  New  York  candidate  in  the  hope  that  he  might  carry  this 
and  other  pivotal  states  and  so  defeat  Mr.  Roosevelt.  But  reverse  the 
situation.  Suppose  the  Southern  leaders  had  come  into  the  convention 
solidly  behind  the  candidacy  of  such  a  man  as  Senator  Bailey  of  Texas. 
The  Southern  combination  could  easily  have  been  beaten  by  a  northern 
combination  of  Illinois,  Michigan,  Minnesota,  Ohio,  Wisconsin,  Pennsyl- 
vania, Massachusetts  and  Maine.  That  is,  eight  northern  states  which 
ordinarily  do  not  cast  a  single  Democratic  electoral  vote  could  overwhelm 
thirteen  Southern  states  which  furnished  every  one  of  the  140  electoral 
votes  actually  received  by  Judge  Parker.  In  a  Republican  convention 
the  same  inequality  appears,  though  less  glaringly:  the  southern  tier, 
which  never  furnishes  a  Republican  electoral  vote,  has  full  voting  strength 
in  determining  the  nominee.  In  the  Republican  convention  of  1884,  an 
effort  was  made  to  enlarge  the  influence  of  the  old  line  Republican  states 
and  to  diminish  correspondingly  the  weight  of  states  where  the  party  was 
in  a  minority.  The  effort  failed  largely  through  the  clamor  and  piteous 
appeals  of  the  negro  Republicans  of  the  South.  These  men  claimed, 
with  some  color  of  equity,  that  they  get  very  little  chance  under  state 


844  AMERICAN  FEDERAL   GOVERNMENT 

election  laws,  and  that  therefore  the  opportunity  to  take  part  in  Re- 
publican councils  on  a  basis  of  their  actual  numerical  strength  comes  but 
once  in  four  years.  If  they  are  shut  out  of  the  field  when  the  harvest  is 
indeed  golden,  as  in  the  case  of  Mr.  Hanna's  campaign  for  the  nomina- 
tion of  Mr.  McKinley  in  1896,  they  may  justly  complain  that  they  are 
wounded  in  the  house  of  their  friends.  This  line  of  argument  does  not 
hold  in  the  case  of  the  Democratic  convention.  Democratic  voters  do 
not  suffer  under  discriminating  election  laws  in  northern  states,  and  the 
results  of  the  last  national  convention  suggest  that  a  change  in  the  basis 
of  representation  may  be  one  of  the  possibilities  of  the  future. 

Finally,  we  may  hazard  the  opinion  that  the  time  is  approaching  when 
national  party  conventions  will  be  subjected  to  some  species  of  statutory 
control.  Parties  under  our  governmental  system  are  purely  voluntary 
organizations  and  stand  theoretically  outside  of  the  control  of  courts 
and  law-making  bodies.  But  the  party  has  become  a  most  important 
political  organ,  and  the  trend  of  our  development  is  all  towards  the  sub- 
jection of  party  to  legal  as  well  as  to  political  responsibility.  It  may  be 
urged  that  party  organization  implies  obedience  to  constituted  authority, 
and  that  this  authority,  from  its  very  nature,  must  reside  within  and  not 
outside  of  the  party  itself.  The  courts  have  ordinarily  taken  this  view, 
and  have  not  regarded  the  action  of  a  party  convention  as  a  proper 
subject  for  judicial  review.  At  the  same  time,  where  party  machinery 
is  used  oppressively  and  for  improper  purposes,  the  legal  organs  of  gov- 
ernmental authority  have  again  and  again  successfully  asserted  the  right 
of  control.  The  commonwealth  of  Massachusetts,  for  instance,  imposes 
a  most  thoroughgoing  governmental  control  upon  party  action.  Each 
party  is  required  to  elect  annually  a  state  committee,  and  the  members 
of  this  committee  are  required  to  meet  and  organize  at  a  particular  time 
and  in  a  particular  manner.  Minute  directions  are  prescribed  for  the 
holding  of  party  caucuses  and  the  choice  of  election  officials.  The  laws 
governing  party  machinery,  as  codified  in  1898,  fill  150  pages,  contain- 
ing an  average  of  300  words  to  a  page.  And  this  body  of  law  has  since 
been  amplified  by  a  mass  of  supplementary  legislation.  One  may  reason- 
ably assert  that  the  American  party  is  not  legally  responsible,  but  this  no 
longer  implies  that  a  little  junta  of  politicians  may  meet  at  such  time 
and  place  as  it  chooses  and  select  nominees  for  public  office.  It  can  not 
be  denied  that  the  state  is  within  its  proper  functions  when  it  undertakes 
to  regulate  the  machinery  by  which  its  governmental  officers  are  selected. 
The  federal  government  has  all  along  conceded  that  the  regulation  of 
the  suffrage  rests  primarily  with  the  states,  and  has  therefore  not  sought 
to  exercise  any  direct  control  over  the  ballot,  being  content  simply  to 
prescribe  uniform  methods  for  the  selection  of  federal  officers  in  state- 
conducted  elections.  A  similar  species  of  jurisdiction  might  well  be 
extended  to  the  nomination  as  well  as  to  the  final  selection  of  the  chief 
of  federal  officers.  In  the  interests  of  safety,  decency,  and  due  delibera- 


THE  NATIONAL  CONVENTION  845 

tion,  Congress  may  at  some  future  time  impose  regulations  as  to  the 
time,  place  and  manner  of  conducting  national  nominating  conventions. 
A  national  convention  hall,  erected  by  the  government  at  Washington, 
or  perhaps  in  a  more  central  locality,  is  one  of  the  possibilities  of  the 
future.  Such  a  hall,  properly  policed  and  provided  with  protection 
against  fire  and  the  incursion  of  the  mob,  would  mark  a  distinct  advance 
in  the  conduct  of  conventions.  So  long  as  all  arrangements  are  left  to  a 
camarilla  of  politicians,  who  have  friends  to  be  rewarded  and  enemies 
to  be  punished ;  so  long  as  the  mob  is  present  to  demand  the  stimulating 
ailment  of  some  passion-fed  illusion  or  illusion-fed  passion  —  so  long 
will  the  proceedings  of  a  national  nominating  convention  fail  to  attain 
the  dignity  and  deliberation  implied  in  the  very  character  of  its  high 
functions. 


INDEX 


Adams,  Congressman,  58 
Administration  measures,  113 
Administrative  tribunals,  445 
"Advice  and  consent,"  103 
Agriculture,  Department  of,  401,  406, 

419 

Aldrich,  Senator,  165,  171,  268 
Algeciras  conference,  102 
Allison,  Senator,  137 
Amidon,  Charles  F.,  739 
Animal  Industry,  Bureau  of,  408 
Appeal  in  criminal  cases,  721 
Appointment,  of  diplomats,   124,  675; 

of  officials,  121,  150,  701 
Appropriations,  303,  317,  320,  342,  348, 

351,  355,  479;  annual  statement  of, 

301;    committee   on,   301,    312,  320, 

342,  348,  355,  358,  437 
Arbitration  treaties,  99 
Army,  76,  610;  appropriation  bill,  202 
Attorney-general,  377,  396 

Bacon,  Senator,  26,  92,  115,  160,  170, 

177,  269,  664 
Bailey,  Senator,  173 
Beveridge,  Senator,  97,  in,  567 
Bowker,  R.  R.,  381 
Bowman,  Harold  M.,  445 
Brewer,  Justice,  706,  718 
Bridge  bill  (1908),  276 
Brooks,  Congressman,  406 
Bryan,  William  J.,  835 
Burton,  Congressman,  219 

Calendar  of  House,  239,  247,  250 
Cannon,  J.  G.,  135,  188,  202,  234,  318, 

461 

Carmack,  Senator,  71 
Carter,  Gen.  W.  H.,  618 
Carter,  Senator,  72,  74,  132,  580 
Centralization,  609,  731,  736,  739,  776, 

781,  805 

Chicago  strike  of  1894,  32 
Choate,  Ambassador,  678 
Civil  service,  437,  440,  659,  683,  686, 

698  ;  examinations  for,  665,  672,  674, 

689,  691 
Civil  Service  Commission,  689 


847 


Clark,  Congressman,  285 

Cleveland,  President,  32,  65,  152,  153, 
539,  685  ;  veto  message,  359 

Coast  and  Geodetic  Survey,  420 

Cockran,  Congressman,  252,  507,  813 

Commander  in  chief  of  the  army,  26,  30 

Commerce  and  Labor,  Department  of, 
420,  433 

Committees,  243,  257  ;  in  House,  205, 
208,  290,  292;  in  Senate,  173;  on 
Appropriations,  301,  312,  317,  320, 
342,  348,  355;  358,  437  ;  on  Interstate 
and  Foreign  Commerce,  262,  276; 
on  Rules,  253,  266,  273,  286,  333,  343, 
348 ;  on  Ways  and  Means,  260,  264, 
342,  358,  369 

Conference  committees,  188,  210 

Congress,  59th,  473;  debating  in,  288; 
power  over  army,  28  ;  slipshod  legis- 
lation in,  293  ;  use  of  taxing  power 
by,  263 

Congressional  Record,  297 

Constitution,  changes  in,  731,  739,  752, 
764  ;  interpretation  of,  643,  753 

Constitutional  Convention,  763 

Constitutional'lawyers,  255 

Consular  service,  651,  658,  671 

Cooper,  Congressman,  191,  198,  227 

Corporations,  Bureau  of,  500,  529,  534; 
federal  control  of,  485,  495,  507 

Cortelyou,  George  B.,  5,  373 

Criminal  cases,  government  appeal  in, 
721 

Crumpacker,  Congressman,  394,  455 

Cuba,  469 

Culberson,  Senator,  159,  268 

Currency  Bill  of  1908,  155,  188,  205,  220 

Currier,  A.  D.,  452 

Cushman,  Congressman,  250 

Customs  administration,  372,  457 

Dalzell,  John,  189,  232,  236,  274,  333 

Daniells,  Senator,  174 

Dawson,  Congressman,  628 

De  Armond,    Congressman,    194,    230, 

339-  763 

Debating  in  Congress,  481 
Delegation  of  legislative  power,  452 


848 


INDEX 


Democratic  convention  of  1904,  833 

Dennis,  A.  P.,  752,  833 

Departments,  362  seq. 

Dilatory  motions.  See  Obstruction 

Diplomatic  appointments,  124 

Diplomatic  service,  651,  6/5 

District  attorneys,  40,  380 

District  of  Columbia,  176 

Documents,  public,  461 

Dolliver,  Senator,  50 

Driscoll,  Congressman,  342,  817 

Elkins  act,  483 

Employers'  Liability  Bill,  527 

Examinations  for  civil  service,  665,  672, 

674,  689,  691 
Executive,  and  legislation,  47,  769;  and 

appropriations,  349,  351,  437  ;  powers 

of,  10,  1 6,  47,  50,  58 
Executive  agreements,  79 
Executive  departments,  362,  602 
Executive  orders,  756,  788 
Executive  rulings,  452 
Extravagance,  355,  357 

Fairlie,  John  A.,  377 

Federal  services,  extension  of,  436,  452, 

495»  546,  599.  6°7>  709,  734,  736>  748, 

754,  774,  776,  781,  80 1 
Federal  "usurpation,"  781 
Field,  Justice,  703 
Filibuster.  See  Obstruction 
Financial  legislation,  64,  148,  299,  301, 

317,  320,  368,  479 
Fish  Commission,  424 
Fitzgerald,  Congressman,  309,  337,  345 
Foraker,  Senator,  62,  67,  69,  162 
Forbes-Lindsay,  C.  H.,  439 
Force  Bill,  131 

Foreign  Relations  Committee,  85,  87 
Forest  reserves,  546,  554,  567,  581,  586, 

594 

Forestry,  403 
Free  seeds,  413 

Gallinger,  Senator,  176 

Garneld,  President  James  A.,  47,  299, 

3T7 

Garneld,  James  R.,  529,  534 
Geological  Survey,  420 
Gettysburg  address  by  Mr.  Tawney,  776 
Gillett,  Congressman,  355 
Gore,  Senator,  169 
Government  printing,  459,  461 
Grant,  President,  152 
Grosvenor,  Congressman,  200,  285,  346 


Hale,1  Senator,  162,  318 

Hardwick,  Congressman,  341 

Harlan,  Justice,  716 

Harrison,  President,  on  civil  service,  683 

Hay,  Secretary,  99,  152 

Hepburn,  Congressman,  200,  258,  824 

Heyburn,  Senator,  555 

Hoar,  Senator,  70, 124,  173,  182,  701,826 

House  of  Representatives,  149;  ap- 
pointment of  committees  in,  243, 
290,  292  ;  bill  procedure,  240 ;  calen- 
dars of,  239,  259;  committees,  257; 
debating,  288;  distribution  of  busi- 
ness among  committees,  258 ;  leave 
to  print,  296;  minority  leadership, 
266;  organization  of,  223;  rules,  223, 
236,  244,  253,  266,  326,  330;  river 
and  harbor  bill,  285;  special  rules, 
266,  273,  333 

Inauguration,  i 

Information,     congressional     requests 

for,    67 

Injunctions,  40,  724,  796 
Inland  waterways,  590 
Insular  Affairs,  Bureau  of,  469 
Insular  possessions,  713.    See  also  the 

individual  possessions 
Interdepartmental  methods,  646 
Interstate  Commerce  Commission,  491, 

5T3>  5r7 
Irrigation,  403,  567 

Jefferson,  on  powers  of  Senate,  123 

Judicial  power,  718 

Judiciary,  703 

Justice,  department  of,  68,  76,  377 

Keep  Commission,  73,  439 
Knox,  Senator,  528 

Labor  and  the  courts,  33,  707 

Lacey,  Congressman,  259 

La  Follette,  Senator,  155,  162,  167,  220 

Land  Office,  539       9 

Langley,  S.  P.,  419 

Leave  to  print,  296 

Legislation,  slipshod,  293 

Legislative,    Executive,    and    Judicial 

Appropriation  Bill,  333,  351 
Library  of  Congress,  427 
Littauer,  Congressman,  64,  324,  351 
Littlefield,  Congressman,  262 
Lodge,  Senator,  69,  70,  85,  150,  186,  663 
Lowell,  F.  C.,  675 
Lynching,  727 


INDEX 


849 


McCall,  Congressman  S.  W.,  135,  473 
McCreary,  Senator,  666 
McHenry,  Congressman,  215 
McKinley,  President,  2,  5,  6,  124,  151, 

463 

McLean,  S.  J.,  495 
Magoon,  Governor  Chas.  E.,  469 
Mail,  fraud  orders,  390,  395,  455 
Message  of  president,  8,  359 
Military  power  of  Congress,  28 
Minority  leadership,  266 
Monroe  Doctrine,  20 
Moody,  Justice  Wm.  H.,  155 
Moon,  Congressman,  246 
Morgan,  Senator,  88,  179 

Nation  and  states,  731,  736,  745,  776, 

785,  805 

National  convention,  826,  833 
Natural  resources.  See  Preservation 
Navy,   Department  of,   419,   610,  614, 

628,  634 

Newell,  F.  H.,  568 
Newlands,  Senator,  590 
Nomination  of  officials,  121 
Norris,  Congressman,  190 

Obstruction,  in   House,  265,  272,  275, 

278,  303;  in  Senate,  132,  135,  155 
Official  papers,  transmission  of,  65,  66 
Organization  of  the  House,  223 

Panama  Canal,  61,  63,  602 

Panama,  recognition  of  republic,  21 

Patronage,  291 

Patterson,  Senator,  563 

Payne,  Congressman,  263,  286,  298,  331 

Peck,  George  R.,  512 

Philippine  Commission,  463 

Philippine  Islands,  18,  469,  475 

Plant  Industry,  Bureau  of,  409 

Porto  Rico,  469 

Post  Office  Department,  381,  390 

Preservation  of  resources,  538,  540, 
555»  586,  594 

President,  and  Congress,  47,  50,  58,  60 ; 
and  foreign  relations,  90  ;  and  legis- 
lation, 112,  769;  and  treaties,  80,  84, 
87  ;  appointments,  7,  701  ;  message, 
8;  military  powers,  16,  22;  powers 
of,  10,  16;  private  office,  6 

Prince,  Congressman,  205,  320,  338 

Pujo,  Congressman,  212 

Pure  Food  Act,  454,  456,  476 

Quay,  Senator,  155,  171 


Railway  mail  service,  693 

Railway  Rate  Bill  (1906),  189,  480,  512, 

51? 

Rayner,  Senator,  10,  60,  79 

Rebating,  488 

Reclamation  service,  592 

Recognition  of  foreign  governments, 
21,  1 06,  1 18 

Reed,  Speaker,  148,  238,  474 

Republican  Convention  of  1880,  826 

Requests  for  information,  67 

Richardson,  Congressman,  203 

River  and  Harbor  Bill,  136,  285,  359 

Roberts,  T.  G.,  634 

Roosevelt,  President,  2,  15,  401,  499, 
540,  686,  721,  736;  message  on  army 
and  navy,  610;  message  on  corpora- 
tions, 485 

Root,  Secretary,  458,  658,  731 

Rossiter,  W.  S.,  459 

Rule  XXI,  327,  334,  342,  346 

Rules,  in  House,  226,  236,  244,  253,  326, 
330;  in  Senate,  156 

Santo  Domingo,  79 

Scientific  work  of  government,  413,  478, 

574 

Secret  sessions,  Senate,  81,  179 

Seed  distribution,  413 

Senate,  127;  and  diplomatic  positions, 
125,  143;  and  House  of  Representa- 
tives, 128,  204  ;  and  House  of  Repre- 
sentatives, revenue  bills,  299;  and 
treaties,  80,  81,  151  ;  committees  in, 
173;  extending  speeches,  on  record, 
185;  filibuster  in,  132,  135,  155; 
maiden  speeches,  183;  procedure, 
155—156;  requests  for  information, 
67;  secret  sessions,  8r,  179;  tariff 
bill,  142;  transmission  of  official 
papers,  66;  unlimited  debate,  130,  760 

Shaw,  Secretary,  373 

Shaw,  W.  B.,  686 

Sherley,  Congressman,  803,  818 

Sherman  Anti-Trust  law,  497 

Smith,  Congressman  (of  Iowa),  327 

Smith,  Marcus  A.,  Congressman,  331 

Smithsonian  Institution,  419,  428 

Speaker,  election  of,  224;  power  of, 
248,  282 

Special  agents,  433  seq. 

Special  rules,  266,  273,  333 

Spooner,  Senator,  22,  67,  73,  74,  81,  87, 
100,  109,  114,  119,  554 

State,  Department  of,  68,  89,  153,  653 

Statute  drafting,  293 


850 


INDEX 


Stevens,  Congressman,  260 
Sundry  Civil  Appropriation  Bill,  350 
Supplies,  purchase  of,  442,  645 
Supreme  Court,  145,  703,  706,  716,  822 

Taft,  President,  463 

Tariff  bill,  142 

Tawney,  Congressman,  301,  348,  432, 

776 

Taxation  bills  in  Senate,  141 
Taxing  power,  use  of,  by  Congress,  263, 

819 

Teller,  Senator,  71,  77,  598 
Tenure  of  Office  Act,  65 
Tillman,  Senator,  85,  86,  122,  132 
Towne,  Congressman,  248 
Townsend,  Congressman,  276,  283 
Treasury  Department,  362,  373,  419 
Treaty-making  power,  79,  81,  94,  151, 

797 


Trusts,  485,  495,  507 

Underwood,  Congressman,  179,  326 
Urgent  deficiencies,  348  seq. 

Vanderlip,  Frank  A.,  362 
Veto  message  (1896),  359 

Wall  Street,  369,  373 
War,  Department  of,  419,  469,  612,  618 
War  power,  16,  22 
Warren,  Senator,  70,  78 
Washburn,  Minister,  677 
Washington,  98,  115 
West,  Henry  L.,  127 
Williams,  John  Sharp,  63,  194,  198,  207, 
218,  226,  265,  271,  277,  296,  337,  820, 

835 
Wilson,  Huntington,  651,  675 


J  "V 


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